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UNIVERSITY  OF  CALIFORNIA 
AT    LOS  ANGELES 


•UFLfCATB 

W^OWN  UNIVERaiTV 
UBRA«Y, 


American    Peace    Society,  Washington,    D.    C. 


PEACE  THROUGH  JUSTICE 


THREE  PAPERS  ON  INTERNATIONAL  JUSTICE  AND  THE 
MEANS  OF  ATTAINING  IT 


BY 

JAMES  BROWN  SCOTT 

Technical  Delegate  of  the  United  States  to  the  Second  Hague  Peace  Conference 
President  of  the  American  Institute  of  International  Law 


"  Justice,  sir,  is  the  great  interest  of  man  on  earth." 

— Daniel  Webster 


UBRAay. 


NEW   YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :  S5  Wmt  8Jkd  Strirt 

LONDON.  TORONTO.  MF.LBOURNE.  AND  BOMBAY 
HUMPHREY  MILFORD 

1917 


.  *  *    *    • 


.      •       '        ,  •    *    #       • 


'       *         »    *    t     * 


COPYRIGHT  1917 

BY  THB 

AMERICAN  PEACE  SOCIETT 

612-613-614  Colorado  Bdildinq 

Washington,  D.  C. 


THE    OUiNM    i    BODEN     CO.     PRtSS 
RAMWAYj    N.  J. 


1    1 


J< 


1^ 


S-^5 


TABLE   OF  CONTENTS 

FAQB 

The  Futuee  of  the  American  Peace  Society      ...  1 

William  Ladd,  Foundee  of  the  American  Peace  Society, 

AND  His  Place  in  the  Consteuctive  Peace  Movement  8 

The   Oeganization   of   International  Justice      ...  51 

Appendix 85 

Index 99 


:v.)'i(i9(> 


TWO  LETTERS 

The   American   Peace    Society 
Colorado  Building 

Washington,  D.  C,  December  15,  1916 
Db.  James  Brown  Scott, 

Secretary,  Carnegie  Endowment  for  International  Peace 

2  Jackson  Place,    Washington,  D.  C. 
My  Dear  Dr.  Scott: 

Since  the  beginning  of  the  European  war,  in  August,  1914,  you 
have  been  gracious  enough  to  write  three  important  documents  each 
of  which  relates  directly  to  the  aims  and  work  of  the  American 
Peace  Society. 

I  refer  to  the  letter  written  by  you,  under  date  of  June  16,  1915, 
to  Mr.  Jackson  H.  Ralston,  which  letter  appeared,  with  your  very 
kind  consent,  in  the  Advocate  of  Peace  for  November,  1915. 

During  the  year  1916,  the  Carnegie  Endowment  for  International 
Peace  republished  the  essay  entitled,  "  An  Essay  on  a  Congress  of 
Nations  for  the  Adjustment  of  International  Disputes  Without 
Resort  to  Arms,"  by  William  Ladd,  the  founder  of  the  American 
Peace  Society.  The  Introduction  to  this  Essay,  comprising  forty- 
four  pages  also  written  by  yourself,  constitutes  a  most  valuable 
contribution  to  the  historical  setting  of  the  peace  movement  in 
America. 

In  the  Advocate  of  Peace  for  January,  1917,  is  to  appear  still 
another  contribution  from  you  entitled,  "  The  Organization  of 
International  Justice." 

These  three  papers,  one  relating  directly  to  the  position  of  this 
ancient  Society  in  the  presence  of  the  war  now  raging,  another  to 
the  past  out  of  which  our  work  must  necessarily  develop,  and  the 
last  an  amplification  of  the  principles  for  which  we  must  stand  and 
strive,  are  of  such  clarity,  poise  and  importance  that  they  should,  it 
seems  to  me,  be  made  available  in  a  single  volume  for  wide  distribu- 
tion. 

V 


vi  PEACE  THROUGH  JUSTICE 

I  am  therefore  writing  to  ask  if,  in  addition  to  these  favors  which 
you  have  already  rendered,  you  will  grant  to  this  Society  the  privi- 
lege of  publishing  these  articles  in  book  form? 

Assuring  you  of  my  personal  obligation  to  you  for  the  debt  under 
which  you  have  placed  all  of  us  other  peace  workers  not  only  in  this 
country  but  abroad,  and  hoping  that  you  will  find  it  agreeable  to 
grant  to  us  this  additional  favor,  I  am. 

Most  sincerely  yours 
(Signed)  Arthur  D.  Cal,i,. 


Washington,  D.  C,  December  16,  1916 

Mr.  Arthur  Deerin  Call, 

Secretary,  American  Peace  Society 
Colorado  Building 

Washington,  D.  C. 

My  Dear  Mr.  Call  : 

In  reply  to  your  all  too  flattering  letter  of  the  15th  instant, 
asking  permission  to  reprint  and  to  issue  in  volume  form  three 
papers,  written  I  should  add  at  your  request,  I  beg  to  say  that  I 
consider  it  both  a  pleasure  and  an  honor  to  have  them  appear  as 
you  propose  and  to  have  them  thought  worthy  to  represent  the 
movement  towards  International  Peace  through  the  recognition  of 
justice  by  the  Nations  and  its  impartial  and  passionless  application 
by  and  to  them  in  their  mutual  relations. 

Thanking  you  for  your  courteous  request  and  gladly  acceding  to 
it,  I  am,  my  dear  Mr.  Call, 

Very  sincerely  yours, 

(Signed)  James  Brown  Scott. 


THE  FUTURE  OF  THE  AMERICAN 
PEACE  SOCIETY* 

By  James  Bkown  Scott 

Carnegie   Endowment   for   International   Peace 

2  Jackson  Place 

Washington,  D.  C,  June  16,  1915. 

My  Dear  Mr.  Ralston  : 

At  the  conclusion  of  the  very  pleasant  and  profitable  inter- 
view which  we  had  yesterday  about  the  future  policy  of  the 
American  Peace  Society  you  were  good  enough  to  ask  that  I  put 
into  writing  some  of  the  views  that  I  ventured  to  express  con- 
cerning the  policy  which  the  American  Peace  Society  might 
properly  pursue. 

I  stated  that  it  seemed  to  me  best  for  the  Peace  Society,  during 
the  present  war,  to  consider  carefully  its  traditions,  in  order  to 
determine  whether,  upon  the  conclusion  of  the  war,  if  not  before, 
it  might  take  up  those  traditions  and  attempt  to  secure,  if 
possible,  their  realization.  When  I  speak  of  traditions,  I  mean 
more  especially  the  views  of  William  Ladd,  the  founder  and 
later  a  president  of  the  American  Peace  Society  and  author  of 
"  Essay  on  a  Congress  of  Nations,"  published  in  1840,  which, 
in  my  opinion,  is  still  the  greatest  literary  contribution  ever 
made  to  the  cause  of  international  peace;  the  views  of  William 
Ja}',  likewise  a  president  of  the  American  Peace  Society,  as  ex- 
pressed in  his  admirable  little  tractate  entitled  "  War  and 
Peace,"  published  in  1842,  and  the  views  of  Elihu  Burritt,  in 
essentials  the  views  of  Ladd,  which  Burritt  set  forth  in  various 

•  Reprinted  from  the  Advocate  of  Peace,  November,  1915,  vol.  77,  page  239, 


2  PEACE  THROUGH  JUSTICE 

addresses  to  the  European  peace  congresses  which  he  called 
into  being. 

Now  it  is  hard  to  give  an  adequate  idea  of  Ladd's  "  Congress 
of  Nations  "  without  an  analysis  of  the  book,  and  it  is  difficult 
to  obtain  a  copy  of  this  work.  Therefore  I  proposed,  at  the 
last  meeting  of  our  Executive  Committee,  held  on  May  21,  to 
issue  a  new  edition  of  this  work,  to  be  published  by  the  Oxford 
Press  and  to  be  widely  circulated.  This  proposal  was  ap- 
proved, subject  to  the  condition  that  I  should  prefix  to  the  essay 
a  biographical  sketch  and  a  statement  of  the  relation  of  Ladd's 
work  to  the  peace  movement  and  to  The  Hague  Conferences, 
which  he  foresaw  and  outlined.  This  I  agreed  to  do.  I  intend 
to  propose  later  a  new  edition  of  William  Jay's  little  work,  and 
I  hope  that  I  may  be  able  to  get  together  a  collection  of 
Burritt's  addresses  and  articles  which  will  justify  their  separate 
publication  and  distribution. 

The  reason  for  republishing  these  works  is  that  they  are  in 
reality  the  head  and  front  of  the  scientific  and  practicable 
peace  movement. 

Ladd  proposed  a  Congress  of  Nations,  as  he  foresaw  the 
possibilities  of  international  conferences  to  consider  questions 
of  international  importance  and  to  agree  upon  rules  of  con- 
duct and  of  law  to  be  adopted  by  the  various  states.  He 
described  in  detail  the  work  of  such  a  diplomatic  body  as  The 
Hague  Conference;  he  stated  how  it  was  to  be  called,  and  he 
framed  its  program,  and  for  many  years  to  come  The  Hague 
Conferences  will  busy  themselves  with  the  topics  suggested 
by  Ladd. 

In  the  next  place,  he  advocated  a  Court  of  Nations  to  decide 
disputes,  submitted  voluntarily  by  the  nations,  in  accordance 
with  generally  recognized  principles  of  law  and  of  equity.  To 
future  disputes  the  court  was  to  apply  the  principles  of  inter- 
national law  or  of  international  conduct  drafted  by  the  Con- 
gress of  Nations  and  accepted  by  such  nations  as  cared  to  be 
bound  by  them.  Ladd  had  no  illusions.  He  believed  that  the 
congress  or  conference  of  nations  would  do  its  work  slowly,  but 
he  felt  that  this  would  be  an  advantage,  as  what  was  slowly 
done  would  not  need  to  be  done  over  again.    He  believed  further 


PEACE  THROUGH  JUSTICE  3 

that  public  opinion  would  force  the  nations  to  live  up  to  their 
agreements,  and  that  public  opinion  would  likewise  secure  com- 
pliance with  the  judgments  of  the  court.  He  was  not  an  advo- 
cate of  force,  either  to  get  the  nations  into  court  or  to  get  them 
out  of  it. 

Jay's  little  book  proposed  the  compromis  clause,  to  be  em- 
bodied in  treaties  subsequently  concluded  by  the  United  States, 
by  which  the  contracting  parties  bound  themselves  to  decide 
all  disputes  arising  under  these  treaties  by  means  of  arbitration, 
and  indeed  to  agree  to  decide  all  disputes  between  them  by 
arbitration. 

Burritt  was  the  disciple  of  Ladd.  He  called  into  being  un- 
official congresses,  presided  over  by  men  like  Victor  Hugo  and 
Sir  David  Brewster,  and  which  men  like  Richard  Cobden 
attended.  The  outbreak  of  the  Crimean  War  stopped  his  work. 
At  these  different  conferences  Mr.  Burritt  spoke  of  an  inter- 
national court  and  of  the  services  which  it  would  render. 

Enough  has  been  said  to  show  that  the  American  Peace 
Society  has  great  traditions.  It  seems  to  me  that  it  should 
call  this  fact  to  the  attention  of  the  public ;  that  it  should  claim 
as  its  own  the  traditions  of  its  distinguished  officers,  for  Ladd 
and  Jay  were  presidents  and  Burritt  was  secretary  of  the 
American  Peace  Society.  I  do  not  mean  by  this  that  it  should 
call  attention  to  the  views  of  its  great  men  of  the  past,  and, 
having  done  so,  fold  its  arms  and  rest.  I  mean  that  the  Amer- 
ican Peace  Society  should  take  up  the  program  of  these  men, 
that  the  American  Peace  Society  should  state  this  program  as 
it  was  stated  by  them,  and  that  the  American  Peace  Society 
should  show  how  the  program  as  thus  stated  fits  into  the  pres- 
ent day.  The  Society  should  not,  however,  content  itself  with 
an  exposition  of  the  views  of  the  three  men  mentioned ;  it  should 
develop  their  views  and  attempt  to  secure,  as  far  as  possible, 
acceptance  of  them  today  and  their  incorporation  into  the 
practice  of  nations. 

I  would  venture  to  suggest  that  the  work  of  the  American 
Peace  Society  should  be  constructive,  in  the  sense  that  it  should 
seek  by  all  practicable  moans  to  advance  the  cause  of  peaceable 
settlement,  whether  it  be  a  settlement  by  good  offices,  mediation, 


4  PEACE  THROUGH  JUSTICE 

friendly  composition,  commissions  of  inquiry,  arbitration,  or 
judicial  decision.  It  should  advocate  the  creation  of  agencies 
fitted  to  secure  these  different  kinds  of  adjustment.  It  should 
endeavor  to  devise  other  methods  of  peaceable  settlement  and  to 
suggest  appropriate  agencies  for  these  newer  methods.  I  think 
that  better  results  would  be  reached  in  the  long  run  by  advo- 
cating this  constructive  policy  than  by  indulging  in  the  denun- 
ciation of  concrete  abuses,  real  or  alleged.  To  be  specific,  I 
think  that  we  do  not  make  much  progress  by  denouncing  an 
increase  of  the  army  or  navy,  or  by  insisting  upon  a  decrease 
of  military  and  naval  budgets.  I  admit  that  an  increase  of  the 
army  and  navy  and  of  military  expenditures  is  to  be  regretted 
for  many  reasons,  one  of  which  is  that,  in  our  country  at  least, 
an  increase  may  well  mean  a  new  danger  known  to  the  small 
circle  of  the  well  informed,  but  not  to  the  public  at  large.  In 
other  countries  an  increase  is  largely  a  concession  to  militarism, 
which  exists  there  but  which,  fortunately  for  us,  does  not 
exist  in  our  country. 

Now,  my  view  is  that  societies  and  organizations  other  than 
the  American  Peace  Society  may  be  counted  upon  to  oppose 
an  increase  of  the  army  or  navy  and  of  military  expenditures 
if  the  members  of  those  societies  or  organizations  believe  that 
an  increase  of  the  land  and  naval  forces  and  that  an  increase 
of  military  expenditures  should  be  checked.  Personally  I  have  a 
feeling  that,  in  the  present  condition  of  affairs,  a  larger  army 
and  a  more  efficient  navy  are  needed  by  the  United  States  for 
purely  defensive  purposes.  At  the  same  time,  I  believe  that,  even 
although  the  army  and  navy  should  be  increased,  we  should 
strive  to  advance  the  cause  of  peaceful  settlement,  and  to  create 
agencies  to  compose  differences  peaceably,  so  that  a  public 
opinion  may  be  formed  so  strongly  in  favor  of  peaceful  adjust- 
ment that  the  resort  to  the  army  and  navy  for  the  decision  of 
international  disputes  will  become  the  rare  exception,  rather 
than  the  frequent  rule. 

I  think  that  the  peace  movement  owes  it  to  itself  to  submit 
a  substitute,  or  a  series  of  substitutes,  for  a  resort  to  arms. 
We  have  denounced  the  old-fashioned  method  of  force,  and  in 
my  opinion  we  are  right  in  denouncing  it,  but,  having  denounced 


PEACE  THROUGH  JUSTICE  5 

it,  I  think  the  burden  rests  upon  us  of  proposing  other  and  more 
adequate  methods  which  shall  have  positive  advantages  of  their 
own  and  few  or  none  of  the  defects  of  the  older  system  which 
we  unsparingl}'  condemn. 

I  have  merely  mentioned  the  army  and  navy  as  a  concrete 
instance,  and  although  it  is  apparently  very  inviting  to  take  up 
the  cudgels  against  the  partisans  of  increased  armament,  I  am 
deeply  convinced  that  the  American  Peace  Society  should  live 
up  to  its  traditions,  that  it  should  develop  them,  and  that  it 
should  leave  to  others  that  part  of  the  peace  movement  which 
falls  outside  of  those  traditions.  There  will  be  a  large  task 
for  the  Peace  Society  if  it  consciously  restricts  itself  to  a 
definite  program.  It  may  not  hope  to  cover  the  entire  field. 
It  will  gain  strength  by  concentration,  and  if  it  limits  itself  to 
constructive  measures  of  the  kind  to  be  found  in  the  plans  of  its 
great  officers,  it  can  hope  to  win  the  confidence  of  men  of  affairs, 
and  thereby  increase  its  standing  and  its  influence  in  the 
community. 

Now,  I  do  not  mean  by  this  that  other  methods  should  be 
discouraged.  The  peace  movement  is  like  a  stream,  fed  from 
man}'  sources,  but  I  think  the  wisest  course  for  the  American 
Peace  Society  is  to  withdraw  within  itself,  as  it  were,  during 
the  present  war,  to  consider  carefully  what  can  best  be  done  in 
the  future,  to  limit  its  program  consciousU',  and,  having  so 
limited  it,  endeavor  to  carry  it  into  effect  when  the  conclusion  of 
peace  will  give  the  Society  a  hearing. 

It  may,  perhaps,  seem  to  you  that  some  of  the  views  which  I 
have  expressed  are  stated  in  the  abstract,  whereas  what  really 
interests  people  and  influences  them  is  the  concrete.  This  is 
true  to  a  certain  extent,  because  I  have  not  analyzed,  and  can- 
not within  the  short  compass  of  a  letter,  analyze  the  views  of 
Messrs.  Ladd,  Jay  and  Burritt.  A  careful  reading  of  their 
works,  however,  will  sliow  that  there  is  plcnt}'  of  the  concrete 
under  the  abstract. 

I  would  not  limit  myself  solely  to  the  views  of  these  great  men. 
I  would,  as  previously  said,  develop  them  as  experience  sug- 
gests that  they  should  be  developed  or  modified,  and  I  would 
consciously  start  from  these  views.     Having  traditions,  I  would 


PEACE  THROUGH  JUSTICE 

state  what  those  traditions  are,  and  at  the  same  I  would 
indicate  an  intention  to  stand  by  them  and  to  live  up  to  them, 
and  to  endeavor  to  secure  their  realization  in  the  practice  of 
nations.  It  is  because  I  believe  that  the  traditions  of  the  Amer- 
ican Peace  Society  set  it  apart  and  give  it  a  unique  position  in 
the  peace  movement,  that  I  advocate  a  return  to  its  traditions. 
Let  other  societies  without  those  traditions  follow  their  best 
judgment.  Encourage  and  aid  them  to  do  so.  But  the  Ameri- 
can Peace  Society  should,  in  my  opinion,  go  back  to  the 
Fathers,  as  it  were,  and  consciously  preach  and  carry  out  their 
doctrines  to  their  logical  conclusion.  By  so  doing,  the  Ameri- 
can Peace  Society  will  occupy  a  very  different  position  in  the 
peace  movement  from  that  which  it  now  occupies,  and  its 
influence  will,  I  feel  quite  sure,  be  appreciably  increased. 

I  have  not  mentioned  the  question  of  the  reorganization  of 
the  society,  or  changes  to  be  made  in  the  Advocate  of  Peace. 
These  are  very  delicate  and  difficult  questions,  and  require  to  be 
considered  with  great  care  and  with  no  little  patience.  The 
reorganization  of  the  Society  depends  largely  upon  the  policy 
which  it  is  to  pursue,  and  an  agreement  should  be  reached 
upon  that  policy  before  attempting  a  reorganization. 

As  regards  the  Advocate  of  Peace,  I  believe  it  should  be 
made  a  great  and  worthy  organ  of  the  peace  movement  as  a 
whole,  that  it  should  be  issued  monthly,  that  it  should  be 
attractive  in  form  and  interesting  in  substance,  that  it  should 
be  edited  by  a  person  at  an  adequate  salary,  who  would  give  his 
whole  time  to  it,  and  that  its  policy  should  be  controlled  by  a 
representative  and  competent  board  of  editors.  This  is  a 
matter  which  needs  much  thought  and  in  which  the  experience 
of  editors  and  managers  of  other  periodicals  is  likely  to  be 
controlling. 

I  am  not  a  member  of  the  Board  of  Directors  or  of  the  Execu- 
tive Committee  of  the  American  Peace  Society,  and  I  hesitate 
to  make  any  suggestions  at  this  time  concerning  its  reorgani- 
zation. I  am,  however,  deeply  interested  in  its  welfare  and  I 
would  be  willing  to  discuss  it  with  you  or  with  your  committee, 
should  you  so  desire.  As  regards  the  Advocate  of  Peace,  I 
should  be  glad  to  take  up  with  you  and  your  committee  the 


PEACE  THROUGH  JUSTICE  7 

changes  "which  seem  to  be  necessary  to  make  it  more  represen- 
tative of  the  peace  movement  and  which  are  calculated  to  in- 
crease its  circulation  and  its  influence. 

In  the  hope  that  I  have  not  set  forth  my  views  on  these  sub- 
jects at  too  great  length,  I  am,  my  dear  Mr.  Ralston, 

Always  sincerely  yours, 
(Signed)  James  Beown  Scott. 

Mr.   Jackson  H.   Ralston,  Union   Savings   Bank  Building, 
Washington,  D.  C. 


WILLIAM  LADD, 

FOUNDER  OF  THE  AMERICAN  PEACE  SOCIETY,  AND  HIS 
PLACE  IN  THE  CONSTRUCTIVE  PEACE  MOVEMENT* 

Our  distinguished  fellow  countryman,  Elihu  Burritt,  known  alike 
as  a  scholar  and  a  philanthropist,  summed  up  in  the  following  para- 
graph, written  in  1871,  the  claim  to  grateful  remembrance  of  his 
master  and  friend,  W^illiam  Ladd,  whom  he  delighted  to  call  the 
apostle  of  peace  and  whose  Essay  on  a  Congress  of  Nations  for  the 
Adjustment  of  International  Disputes  without  Resort  to  Arms, 
originally  published  in  IS-IO,  is  here  reproduced: 

When  we  consider  that  such  a  permanent  High  Court  of 
Nations  [advocated  by  Mr.  Ladd  in  the  Essay]  would  not  only 
be  the  noblest  and  loftiest  bar  that  could  be  established  on 
earth  for  the  appeal  and  settlement  of  all  serious  questions  of 
difficulty  between  them,  but  that  such  a  bar  would  be  a  bond 
of  confederation  to  them,  we  must  recognize  the  fullness  of 
Mr.  Ladd's  plan  for  abolishing  war,  and  establishing  permanent 
and  universal  peace.  He  gave  to  the  advocacy  and  develop- 
ment of  this  scheme  years  of  indefatigable  faith  and  effort. 
He  enlisted  a  large  number  of  writers  to  elaborate  it  with  their 
best  arguments  and  illustrations.  As  a  stimulus  to  these  efforts, 
the  American  Peace  Society  offered  $1,000  as  a  prize  for  the 
best  essay  on  the  subject.  A  considerable  number  were  pro- 
duced, and  submitted  to  such  a  jury  of  award  as  Wirt,  Webster, 
Story,  and  Marshall  could  form.  As  their  excellence  was  so 
good  and  even,  the  jury  could  not  desire  to  say  which  was  the 
best.  So,  six  of  them  were  published  in  a  large  volume  by  the 
Society,  including  one  written  by  Mr.  Ladd  himself,  which 
developed  the  scheme  more  completely  than  any  of  the  rest,  and 
which  to  this  day  is  accepted  as  its  best  exponent  and  argu- 
ment. This  was  the  largest  and  most  costly  volume  ever  pub- 
lished on  either  side  of  the  Atlantic  on  the  subject  of  peace. 
As  soon  as  it  left  the  press,  Mr.  Ladd  set  himself  to  the  work 
of  distributing  copies  to  the  crowned  heads  and  leading  men  of 
Christendom  with  all  the  glowing  zeal  and  activity  which  he 
brought  to  the  cause.  And  it  is  the  best  tribute  to  his  clear 
judicious  mind  that  the  main  proposition  as  he  developed  it 
has  been  pressed  upon  the  consideration  of  the  public  mind  of 

*Thi3  is  the  author's  Introduction  to  "An  Essay  on  a  Congress  of  Nations  for  the 
Adjustment  of  International  Disputes  without  Resort  to  Arms,"  by  William  Ladd. 
Published  by  the  Carnegie  Endowment  for  International  Peace,  Division  of  Interna- 
tional Law,  Washington,  1916. 

8 


PEACE  THROUGH  JUSTICE  9 

Christendom  ever  since  his  day,  without  amendment,  addition, 
or  subtraction.  The  writer  of  these  introductory  notes,  who 
was  one  of  Mr.  Ladd's  disciples  and  successors,  felt  it  his  duty 
to  present  the  proposition,  pure  and  simple  as  his  master 
developed  it,  at  the  great  Peace  Congresses  at  Brussels,  Paris, 
Frankfort,  and  London ;  and  to-day  it  stands  before  the  world, 
the  scheme  of  William  Ladd.* 

If  this  language  was  true,  as  it  undoubtedly  was,  thirt}'  years 
after  Mr.  Ladd's  death,  it  is  equally  true  at  the  present  day,  some 
forty-four  years  after  Mr.  Bun-itt's  tribute,  and  seventy- four  years 
after  the  death  of  William  Ladd,  when  the  Congress  which  he  pro- 
posed, to  agree  upon  the  principles  of  international  law,  had  been 
called  in  1898  by  a  "  respectable  state,"  to  use  the  words  of  the 
Essay,  and  when  the  Court  of  Nations  which  he  advocated  was 
approved,  in  1907,  in  the  second  Conference  of  the  Nations,  likewise 
called  by  the  same  respectable  state,  and  when  the  Court  itself  can 
be  said  to  be  in  the  process  of  formation. 

The  career  of  a  man  whose  services  have  been  so  highly  rated,  but 
not  over-rated,  by  Mr.  Burritt,  and  whose  project  is  being  carried 
out  slowly  and  piecemeal  by  the  Hague  Conference,  whose  possibility 
he  foresaw  and  whose  labors  he  outlined,  deserves  to  be  recorded  and 
to  be  placed  before  persons  interested  in  international  organization. 
And  yet,  like  those  whose  lives  are  merged  in  their  ideals,  there  is  but 
little  to  relate.  Mr.  Ladd  was  born  in  Exeter,  New  Hampshire,  on 
the  10th  day  of  May,  1778.  He  fitted  for  college  at  the  academy 
of  his  native  town ;  he  entered  Harvard  College  in  1793 ;  and  he 
graduated  with  the  class  of  1797.  He  followed  the  sea  for  a  number 
of  years,  to  which  he  returned  after  a  philanthropic  but  not  alto- 
gether successful  experience  in  Florida,  but  left  it  permanently  upon 
the  outbreak  of  the  War  of  1812  with  Great  Britain.  In  1812  he 
settled  at  Minot  in  the  State  of  IVIaine  upon  a  farm  wliich  had 
belonged  to  his  father.  The  successful  management  of  his  modest 
inheritance,  to  which  he  added  from  time  to  time,  made  him  inde- 
pendent, indeed  wealthy,  and  he  was  therefore  able  to  devote  the 
leisure  of  the  winter  season,  and  to  give  very  considerable  sums  of 
money,  to  causes  of  a  philanthropic  nature  in  which  he  was  inter- 

•John   Hemmenway,   Memoir  of   William  Ladd,   1872,   introductory   notes, 
pp.  14-5. 


10  PEACE  THROUGH  JUSTICE 

ested.     He  died   at   Portsmouth,   New   Hampshire,   on   April   7th, 
1841. 

In  his  early  years,  indeed  until  1819,  Mr.  Ladd  is  not  known  to 
have  taken  any  interest  in  peace  as  such,  and  his  connection  with  the 
movement  was  as  accidental  to  him  as  it  was  fortunate  to  the  cause 
of  peace.     His  own  account  is  as  follows : 

I  had  the  privilege  of  witnessing  some  of  the  last  hours  of 
the  Rev.  Jesse  Appleton,  D.D.,  President  of  Bowdoin  College. 
In  his  joyful  anticipations  of  the  growing  improvement  of  the 
world,  and  the  enumeration  of  the  benevolent  societies  of  the 
day,  he  gave  a  prominent  place  to  Peace  Societies;  and  this  was 
almost  the  first  time  I  ever  heard  of  them.  The  idea  then 
passed  over  my  mind  as  the  day-dream  of  benevolence;  and  so 
every  one  views  the  subject,  who  does  not  examine  it.  It  is 
probable  that  the  impressions  made  at  this  interview  first  turned 
my  attention  to  the  subject,  but  it  probably  would  soon  have 
escaped  from  me,  had  not  the  Solemn  Review  *,  which  came  soon 
after  into  my  possession,  in  a  very  singular  way,  riveted  my 
attention  in  such  a  manner  as  to  make  it  the  principal  object 
of  my  life  to  promote  the  cause  of  Peace  on  earth  and  good- 
will to  man.t 

Leaving  out  of  consideration  isolated  expressions  in  favor  of 
peace,  to  be  found  in  the  writings  of  Dr.  Franklin,  in  the  letters  raid 
state  papers  of  Washington  as  private  citizen  and  as  President, 
and  the  negotiation  of  the  Jay  Treaty  of  1794*,  which  called  attention 
to  arbitration  and  introduced  it  again  into  the  practice  of  nations, 
it  may  be  said  that  the  first  attempt  to  bring  the  friends  of  peace 
together  and  to  combine  their  efforts  in  a  movement  to  advance  the 
cause  of  peace  dates  from  1809,  in  which  year  Mr.  David  Low  Dodge, 
a  high-minded  and  successful  merchant  of  New  York  City,  pub- 
lished a  tract  entitled  The  Mediator's  Kingdom  not  of  this  World: 
but  Spiritual,  in  which,  to  quote  his  own  words,  he  bore  "  public 
testimony  against  the  anti-Christian  custom  of  war."  Mr.  Dodge 
reports,  in  his  interesting  autobiography,  that  during  the  ensuing 
year  "  more  than  twenty  leading  members  of  evangelical  churches 

*  A  Solemn  Review  of  the  Custom  of  War,  a  pamphlet  by  the  Rev.  Noah 
Worcester,  D.  D.  First  published  in  1814..  Now  published  by  The  American  i'eace 
Society. 

f  Hemmenway,  op.  cit.,  p.  38. 


PEACE  THROUGH  JUSTICE  11 

appeared  fully  to  embrace  the  doctrine  of  peace  on  earth  and  good- 
will to  men,  repudiating  the  spirit  and  maxims  of  war."  * 
Two  or  three  years  later  he  wrote: 

By  this  time  the  friends  of  peace  in  New  York  had  so  much 
increased,  that  early  in  1812,  they  deliberated  on  the  expediency 
of  forming  a  peace  society,  wholly  confined  to  decided  evangeli- 
cal Christians,  with  a  view  to  diffuse  peace  principles  in  the 
churches,  avoiding  all  party  questions.  Our  object  was  not  to 
form  a  popular  society,  but  to  depend,  under  God,  upon  indi- 
vidual personal  effort,  by  conversation  and  circulating  essays 
on  the  subject ;  .  .  . 

At  this  juncture,  there  was  much  political  excitement  and 
war  was  threatened  against  Great  Britain,  and  fearing  that 
our  motives  would  be  misapprehended  we  judged  it  not  wise  to 
form  a  peace  society  op?nly,  until  the  public  mind  was  more 
tranquil.  In  the  mean  time  we  resolved  to  be  active  individually 
in  diffusing  information  on  the  subject,  and  answering  the 
objections  of  our  friends.  I  was  appointed  to  prepare  an  essay 
on  the  subject,  stating  and  answering  objections.! 

The  result  was  the  preparation  and  publication,  in  1812,  of  an 
elaborate  tractate  entitled  War  Inconsistent  with  the  Religion  of 
Jesus  Chnst,X  which  expanded  and  modified  the  views  briefly  set 
forth  in  the  Mediator's  KingdomX  and  which  can  at  this  day  be 
taken  as  an  authoritative  exposition  of  the  views  of  those  who  believe 
that  defensive  as  well  as  offensive  war  is  inconsistent  with  the 
Christian  religion. 

A  further  quotation  from  the  autobiography  shows  not  only  Mr. 
Dodge's  interest  in  the  peace  movement  but  the  progress  it  was 
making.  "  The  friends  of  peace,"  he  said,  "  had  two  or  three  meet- 
ings relative  to  the  organization  of  a  society.  In  August,  1815, 
they  unanimously  formed  the  New  York  Peace  Society,  of  between 
thirty  and  forty  members,  probably  the  first  that  was  ever  formed 
in  the  world  for  that  specific  object."  Mr.  Dodge's  society,  the 
first  in  the  world  for  the  specific  object  of  promoting  peace,  was 
not  long  allowed  to  remain  in  undisturbed  possession  of  the  field 

•  Memorial  of  Mr.  David  L.  Dodge,  1854,  p.  90. 
t  Ibid.,  p.  95. 

X  In  1905  Mr.  Edwin  D.  Mead  published  Mr.  Dodge'a  two  tractates  and  pre* 
fixed  an  interesting  biographical  sketch  of  the  author. 


12  PEACE  THROUGH  JUSTICE 

which  it  was  the  first  to  enter.  Indeed,  in  the  same  year,  and  within 
the  course  of  the  next  few  years,  peace  societies  in  Europe  as  well 
as  in  the  United  States  "  were,"  to  quote  his  own  words,  "  formed, 
without  any  correspondence  or  knowledge  of  each  other,  the  provi- 
dence of  God  having  paved  the  way."  * 

It  has  been  thought  well  to  state  the  genesis  of  the  peace  move- 
ment in  the  language  of  its  founder,  because  Mr.  Dodge  can  fairly 
be  considered  as  such.  The  passages  from  his  autobiography  make 
it  clear  that  what  is  now  regarded  as  an  economic,  biological,  and 
juridical  as  well  as  a  religious  movement  began  as  a  protest  of  high- 
minded  and  deeply  religious  persons  against  war  as  inconsistent  with 
the  teachings  of  the  New  Testament. 

In  1815,  the  following  peace  societies  were  created  in  the  United 
States: 

The  New  York  Peace  Society,  the  first  of  its  kind,  organized,  as 
has  been  seen,  by  Mr.  Dodge  in  August ;  the  Ohio  Peace  Society, 
founded  on  December  2;  the  Massachusetts  Society,  founded  on 
December  S6,  by  the  Rev.  Noah  Worcester,  D.D.,  author  of  the 
tract  entitled  A  Solemn  Review  of  the  Custom  of  War  which  appears 
to  have  converted  Mr.  Ladd  to  the  ways  of  peace. 

In  the  interval  between  the  founding  of  these  societies  and  the 
creation  of  a  National  Association  in  1828,  peace  societies  were 
formed  in  at  least  the  following  States :  Pennsylvania,  Maine,  New 
Hampshire,  Vermont,  Rhode  Island,  Connecticut,  Georgia,  and  North 
CaroHna. 

As  Mr.  Ladd  said,  in  the  interesting  passage  which  has  already 
been  quoted,  the  cause  of  peace  became  the  principal  object  of  his 
life.  He  felt  the  necessity  of  gathering  the  various  peace  societies 
of  the  United  States  which  have  been  mentioned  into  a  larger  and 
national  organization  to  be  known  as  the  American  Peace  Society, 
which  he  succeeded  in  forming  in  May  1828,  with  the  aid  of  the 
indefatigable  Mr.  Dodge,  and  of  which  he  himself  was  the  executive 
ofBcer  and  for  the  last  four  years  of  his  life  its  president.  In  the 
same  year  and  month  he  began  the  Harbinger  of  Peace,  which  ap- 
peared monthly  and  had  a  circulation  of  1,500  copies,t  as  the  organ 
of  the  movement,  and  continued  to  edit  it  for  three  years.  Its  name 
was  then  changed  to  the  Calumet.  In  1835  it  gave  way  to  the 
*  Ibid.,  p.  99.  f  Hemmenway,  op.  cit.,  p.  48. 


PEACE  THROUGH  JUSTICE  18 

'American  Advocate  of  Peace,  which  in  turn  became,  in  1837,  the 
Advocate  of  Peace,  the  monthly  journal  which  is  now,  as  then,  the 
organ  of  the  American  Peace  Society. 

Mr.  Ladd  was  untiring  as  a  lecturer  and  writer  upon  his  chosen 
subject,  and  in  18-10  he  published  the  Essay  on  a  Congress  of 
Nations,  which  is  his  abiding  title  to  fame.  In  this  remarkable 
essay,  which  will  later  be  briefly  analyzed,  he  advocated  a  Congress 
of  Nations  and  a  Court  of  Nations,  each  of  which  was  to  be  separate 
and  distinct,  as  diplomatic  and  judicial  functions  require,  as  he 
properly  said,  "  different,  not  to  say  opposite,  characters  in  the 
exercise  of  their  functions."    Thus,  he  said: 

I  consider  the  Congress  as  the  legislature,  and  the  Court  as 
the  judiciary,  in  the  government  of  nations,  leaving  the  func- 
tions of  the  executive  with  public  opinion,  "  the  queen  of  the 
world."  This  division  I  have  never  seen  in  any  essay  or  plan 
for  a  congress  or  diet  of  independent  nations,  either  ancient  or 
modem;  and  I  believe  it  will  obviate  all  the  objections  which 
have  been  heretofore  made  to  such  a  plan.* 

His  many  writings  prove  that  Mr.  Ladd  possessed  a  facile  pen 
and  his  style  may  fairly  be  judged  by  his  Essay  on  a  Congress  of 
Nations.  His  agitation  from  the  platfoiTn  shows  him  to  have  been 
a  ready  speaker,  interesting  alike  to  the  select  audiences  of  colleges 
and  universities,  and  to  the  simpler  minded  folk,  who  are,  it  is  be- 
lieved, a  severer  and  a  juster  judge. 

Hemmcnway's  Memoir,  published  in  1872,  which  is  still  the  chief, 
indeed  the  only,  account  of  Mr.  Ladd's  life,  is  full  of  tributes  to 
his  ability  as  a  speaker  and  to  his  power  to  instruct,  to  interest,  and 
to  hold  an  audience.  He  was  licensed  to  preach  in  1837,  and  in  a 
letter  written  some  two  months  before  his  death  he  thus  describes 
an  experience  wliich  he  and  the  good  people  of  Geneva,  New  York, 
seem  -to  have  enjoyed: 

I  went  to  Geneva,  and  preached  three  times  on  the  Sabbath, 
as  usual  to  large  and  attentive  audiences.  But  my  strength 
failed  me  in  the  last  sermon,  which  was  to  an  ovci^flowing  audi- 
ence, and  I  was  obliged  to  request  the  minLter  to  give  out  a 

•  Advertisement,  post,  p.  1. 


14  PEACE  THROUGH  JUSTICE 

hymn,  in  the  middle  of  the  sermon  which  was  an  hour  and  a  half 
long.* 

The  reasons  for  his  success  both  in  the  pulpit  and  upon  the  plat- 
form are  admirably  stated  in  the  following  letter,  written  by  Mr. 
John  S.  C.  Abbott  in  1870: 

A  little  over  forty  years  ago,  when  I  was  a  student  in  the 
Theological  Seminary  at  Andover,  Captain  Ladd  addressed  the 
young  divinity  students  there  upon  the  subject  of  peace.  As 
I  remember  him,  he  was  a  florid,  handsome  man,  looking  like 
the  bluff  Christian  sailor.  His  address  was  very  fervent  and 
convincing,  though  at  this  distance  of  time  I  cannot  recall  its 
details.  He  was  received  cordially  by  the  students.  His  argu- 
ments were  appreciated;  and  with  no  little  enthusiasm,  as  I 
remember,  a  peace  society  was  organized  in  the  seminary.  .  .  . 

Upon  one  other  occasion  I  met  him  some  years  after,  in  a 
social  circle,  in  Brunswick,  Maine.  He  was  the  life  of  the 
party,  full  of  fun  and  frolic.  I  was  told  that  his  natural  tem- 
perament was  of  the  most  joyous  kind.  He  played  with  the 
children  as  though  he  were  one  of  them.  Some  one  pleasantly 
remarked,  "  When  you  become  a  man,  you  should  put  away 
childish  things."  He  promptly  replied,  "  Ah,  I  fear  that  I 
shall  never  be  a  man.  I  can  never  be  anything  more  than  a 
Laddr  t 

The  anecdote  related  by  Mr.  Abbott  indicates  a  sense  of  humor 
which  made  him  agreeable  and  persuasive  in  the  social  circle,  and 
an  interesting  statement  by  an  intimate  friend  shows  that  the  humor 
was  not  confined  to  his  friends  in  easy  and  familiar  intercourse,  but 
that  it  invaded,  to  his  friend's  regret,  the  pulpit  as  well.  Thus  the 
Rev.  Dr.  Cummings  solemnly  states  that  "  If  he  erred  at  all,  it  was 
by  an  excess  of  pleasantry ;  or  more  truly  perhaps,  by  ill-timed 
pleasantry,  suffering  it  occasionally  to  break  out  amidst  the  solemn 
exercises  of  a  religious  meeting.  This  would  not  interfere  with  the 
edification  of  minds  constituted  like  his  own ;  but  all  cannot  make 
such  sudden  transitions."  % 

Charles  Sumner's  tribute  to  Mr.  Ladd,  in  his  War  System  of  the 
Commonwealth  of  Nations,  is  well  known,  and  need  not  be  quoted 

•  Hemmenway,  op.  cit.,  pp.  96-7.  fibid.,  pp.  142-3. 

Jlbid.,  p.  129. 


PEACE  THROUGH  JUSTICE  15 

in  full.     In  concluding  his  encomium,  Senator  Sumner  fell  justified 
in  saying: 

By  a  long  series  of  practical  labors,  and  especially  by  de- 
veloping, maturing,  and  publishing  the  plan  of  an  Interna- 
tional Congress,  has  William  Ladd  enrolled  himself  among  the 
benefactors  of  mankind.* 

In  a  later  portion  of  the  address,  Senator  Sumner  said : 

The  idea  of  a  Congress  of  Nations  with  a  High  Court  of 
Judicature  is  as  practicable  as  its  consummation  is  confessedly 
dear  to  the  friends  of  Universal  Peace.  Whenever  this  Con- 
gress is  convened,  as  surely  it  will  be,  I  know  not  all  the  names 
that  will  deserve  commemoration  in  its  earliest  proceedings ; 
but  there  are  two,  whose  particular  and  long-continued  advo- 
cacy of  this  Institution  will  connect  them  indissolubly  with 
its  fame, — the  Abbe  Saint-Pierre,  of  France,  and  William 
Ladd,  of  the  United  States.* 

The  less  known  but  convincing  tribute  of  the  gentle  and  kindly 
Andrew  Preston  Peabody,  for  many  years  Plummer  Professor  of 
Christian  Morals  in  Harvard  University,  and  who  knew  him  well 
and  appreciated  his  labors,  may  fittingly  be  quoted  as  placing  the 
man  and  his  work  in  their  true  light.     Thus,  Dr.  Peabody  said: 

William  Ladd  seemed  to  live  only  for  his  race.  He  was  a 
peace-maker,  not  merely  by  profession  or  public  efforts,  but  in 
private  life.  He  was  not  one  of  those  who,  in  their  love  for 
the  race  as  a  whole,  forget  the  charity  due  the  individual.  But 
he  was  gentle,  forbearing,  and  conciliatory,  thoughtful  of  tlie 
rights  of  others,  alwaj's  earnest  to  mediate  between  those  at 
variance,  ready  to  make  sacrifice,  to  cherish  kind  feelings  among 
neighbors,  fellow-citizens,  and  fellow-Christians.  Few  men 
have  left  so  many  warm  friends  as  he ;  and  wo  doubt  whether 
he  has  left  an  enemy ;  sure  we  are  that  he  was  no  man's  enemy. 
The  angel  of  death  found  him  as  free  as  he  was  in  infancy  from 
malice  and  hatred. 

He  has  for  years  exerted  a  commanding  influence  over  the 
public  mind,  both  in  our  own  country  and  abroad.    When  he  com- 

*  Senator  Sumner's  address  w&a  delivered  before  the  American  Peace  Society 
May  28,  1849,  and  waa  published  by  the  Society  in  1854.  The  above  passages 
are  quoted  from  The  Works  of  Charles  Sumner,  1871,  vol.  ii,  pp.  248,  204. 


16  PEACE  THROUGH  JUSTICE 

menced  his  labors  in  the  cause  of  peace,  he  stood  ahnost  alone. 
But  our  friend  hoped  against  hope,  and  toiled  on,  undaunted 
by  the  seeming  fruitlessness  of  his  efforts.  He  knew  that  he 
was  laboring  in  the  cause  of  God  and  of  man,  and  therefore 
not  in  vain.  He  has  left  many  able  and  faithful  fellow-workers ; 
but  the  most  of  them  derived  their  first  impulse  from  his  dis- 
courses or  publications ;  and  if  mankind  are  to  cease  from  war, 
if  our  country  is  to  take  the  lead  in  putting  away  violence 
between  nation  and  nation,  his  name  must  go  down  to  posterity 
as  essentially  connected  with  the  earliest  steps  of  this  Christian 
movement,  and  be  transmitted  for  the  lasting  gratitude  of  his 
race.* 


Statesmen,  clergymen,  philosophers,  jurists,  and  dreamers  of 
dreams,  without  a  calling  or  a  profession,  have,  from  time  to  time, 
urged  upon  an  unwilling  and  unappreciative  world  projects  of  inter- 
national confederation,  of  international  conferences,  and  of  inter- 
national tribunals,  and  it  seems  desirable,  before  considering  Mr. 
Ladd's  more  modest  proposal  for  a  Congress  of  Nations,  to  premise 
some  observations  upon  the  more  meritorious  or  better  known  of 
these,  which  have  attracted  attention  and  which  have  both  stimu- 
lated and  impressed  the  superior  minds  of  Europe  and  America. 
For  present  purposes,  it  seems  unnecessary  to  consider  projects 
which  were  drafted  before  the  Protestant  Reformation  shattered 
the  claim  of  Rome  even  to  spiritual  supremacy,  or  before  the  seven- 
teenth century  which,  rejecting  the  claims  of  the  Empire  to 
universal  dominion,  recognized  in  the  Congress  of  Westphalia 
of  IG-tS  the  independence  of  states  irrespective  of  origin,  size 
or  religion,  thus  making  possible  both  the  society  and  the  law  of 
nations. 

Of  seventeenth  century  projects,  the  most  important  are  those 
of  Emeric  Cruce  (1623),  of  Grotius  (1625),  of  Sully  (1638),  and 
of  William  Penn  (1693);  and  of  the  eighteenth  century,  those  of 
the  Abbe  de  Saint-Pierre,  of  Jean  Jacques  Rousseau,  of  Jeremy 
Bentham  (1786-89),  and  of  Kant  (1795). 

The  first  to  be  considered  is  "  The  New  Cineas  or  Discourse  of 
the  Occasions  and  Means  to  establish  a  General  Peace,  and  the  Lib- 
erty of  Commerce  throughout  the  Whole  World,"  which  was  written 

•Hemmenway,  op.  cit.,  pp.  130-1. 


PEACE  THROUGH  JUSTICE  17 

by  Emeric  Cruce  and  published  in  1623.*  The  title  suggests 
the  existence  of  an  old  Cineas,  of  whom  Plutarch  has  something  to 
say  in  his  Lives  of  Illustrious  Men,  and  as  the  new  Cineas  was  to 
show  the  monarchs  of  his  day  the  path  of  wisdom  just  as  the  old 
Cineas  had  endeavored  to  lead  Pyrrhus,  famous  for  his  dubious 
victories,  into  the  ways  of  wisdom  and  peace,  it  seems  well  to  con- 
sider the  man  Cineas  and  the  nature  of  his  advice,  which,  unfortu- 
nately, was  not  taken  by  his  royal  master. 
Plutarch  says  of  him: 

This  person,  seeing  Pyrrhus  eagerly  preparing  for  Italy,  led 
him  one  day  when  he  was  at  leisure  into  the  following  reason- 
ings :  "  The  Romans,  sir,  are  reported  to  be  great  warriors 
and  conquerors  of  many  warlike  nations ;  if  God  permit  us  to 
overcome  them,  how  should  we  use  our  victory  ?  "  "  You  ask," 
said  P3'rrhus,  "  a  thing  evident  of  itself.  The  Romans  once 
conquered,  there  is  neither  Greek  nor  barbarian  city  that  will 
resist  us,  but  we  shall  presently  be  masters  of  all  Italy,  the 
extent  and  resources  and  strength  of  which  any  one  should 
rather  profess  to  be  ignorant  of,  than  yourself."  Cineas,  after 
a  little  pause,  "  And  having  subdued  Italy,  what  shall  we  do 
next?"  Pyrrhus  not  yet  discovering  his  intention,  "Sicily", 
he  replied,  "  next  holds  out  her  arms  to  receive  us,  a  wealthy 
and  populous  island,  and  easy  to  be  gained;  for  since 
Agathocles  left  it,  only  faction  and  anarchy,  and  the  licentious 
violence  of  the  demagogues  prevail."  "  You  speak,"  said 
Cineas,  "  what  is  perfectly  probable,  but  will  the  possession  of 
Sicily  put  an  end  to  the  war.''"  "God  grant  us,"  answered 
Pyrrhus,  "  victory  and  success  in  that,  and  we  will  use  these 
as  forerunners  of  greater  things ;  who  could  forljcar  from  Libya 
and  Carthage  then  within  reach,  which  Agathocles,  even  when 
forced  to  fly  from  Syracuse,  and  passing  the  sea  only  with  a 
few  ships,  had  all  but  surprised.''  These  conquests  once  per- 
fected, will  any  assert  that  of  the  enemies  who  now  pretend  to 
despise  us,  any  one  will  dare  to  make  further  resistance.?'* 
"  None,"  replied  Cineas,  "  for  then  it  is  manifest  we  may  with 
such  mighty  forces  regain  Macedon,  and  make  an  absolute  con- 
quest of  Greece;  and  when  all  these  are  in  our  power,  what  shall 

*  Emeric  Cruc^,  Le  Nouveau  Cyn6e  ou  Discours  d'Estat  reprdaentant  lea 
occasions  et  Moyens  d'entahUcr  une  Paix  q^n^rale,  et  la  liberty  du  commerce  par 
tout  le  Monde.  In  1009  Mr.  Thomas  Willing  Balch  published  a  sumptuous 
edition  of  the  French  text  and  an  English  translation  of  this  remarkable  work. 
References  are  to  the  Balch  ed. 


18  PEACE  THROUGH  JUSTICE 

we  do  then?  "  Said  Pjrrhus,  smiling,  "  We  will  live  at  our  ease, 
my  dear  friend,  and  drink  all  day,  and  divert  ourselves  with 
pleasant  conversation."  When  Cineas  had  led  Pyrrhus  with 
his  argument  to  this  point :  "  And  what  hinders  us  now,  sir, 
if  we  have  a  mind  to  be  merry,  and  entertain  one  another,  since 
we  have  at  hand  without  trouble  all  those  necessary  things,  to 
which  through  much  blood  and  great  labor,  and  infinite  hazards 
and  mischief  done  to  ourselves  and  to  others,  we  design  at  last 
to  arrive?  "  * 

The  meaning  of  the  title  of  Cruce's  book  is  thus  evident,  and  the 
advice  of  the  new  fared  no  better  than  the  advice  of  the  old  Cineas. 
The  proposal  contained  in  this  remarkable  book,  which  had  be- 
come so  rare  as  almost  to  have  disappeared,  was  that  of  a  union  of 
the  nations  and  the  settlement  of  their  disputes  in  a  general  confer- 
ence of  their  ambassadors,  with  the  use  of  force  if  necessary  to  secure 
compliance.  Although  a  Frenchman,!  Cruce  was  disinterested,  in 
the  sense  that  he  sought  no  special  advantages  for  his  country,  his 
hope  was  to  bring  about  and  to  maintain  peace  without  aggrandiz- 
ing France  and  his  subject  thus  differed,  as  will  be  seen,  in  form  as 
well  as  in  substance,  from  the  Great  Design  attributed  to  Henry  IV, 
which,  if  realized,  would  have  transferred  the  Austrian  scepter  to 
French  hands.  Cruce's  desire  was  to  secure  the  establishment  of 
universal  peace,  and  for  this  purpose  he  advocated  "  before  resort- 
ing to  arms,  resort  to  the  arbitration  of  the  sovereign  potentates 
and  lords,"  J  apparently  in  an  assembly  composed  of  ambassadors, 
in  a  city  chosen  for  this  purpose — Venice  was  suggested — "  where," 
to  quote  his  language,  "  all  sovereigns  should  have  perpetually  their 
ambassadors,  in  order  that  the  differences  that  might  arise  should  be 
settled  by  the  judgment  of  the  whole  assembly.  The  ambassadors 
of  those  who  would  be  interested  would  plead  there  the  grievances 
of  their  masters  and  the  other  deputies  would  judge  them  without 

*A.  H.  dough's  translation  of  Plutarch's  Lives  of  Illustrious  Men,  1881, 
vol.  2,  pp.  73-4, 

f  Why  should  I  a  Frenchman  wish  harm  to  an  Englishman,  a  Spaniard,  or 
an  Hindoo?  I  cannot  wish  it  when  I  consider  that  they  are  men  like  me,  that 
I  am  subject  like  them  to  error  and  sin  and  that  all  nations  are  bound  together 
by  a  natural  and,  consequently,  indestructible  tie,  which  ensures  that  a  man 
cannot  consider  another  a  stranger  unless  he  follows  the  common  and  inveterate 
opinion  that  be  has  received  from  hia  predecessors.    Cruc€,  loc.  cit.,  p.  84. 

Jlbid.,  p.  40. 


PEACE  THROUGH  JUSTICE  19 

prejudice.  .  .  .  And  the  better  to  authorize  it,  all  the  said  princes 
will  swear  to  hold  as  inviolable  law  what  would  be  ordained  by  the 
majority  of  votes  in  the  said  assembly,  and  to  pursue  with  arras 
those  who  would  wish  to  oppose  it."  * 

Two  years  after  the  appearance  of  the  Nouveau  Cynee,  Grotius 
published  the  first  systematic  treatise  on  international  law,  entitled 
De  Jure  Belli  ac  Pads,  in  which  he  said,  influenced  it  may  be,  as 
Professor  Nys  says,t  by  Cruce's  book: 

It  would  be  useful,  and  indeed,  it  is  almost  necessary,  that 
certain  Congresses  of  Christian  Powers  should  be  held,  in  which 
the  controversies  which  arise  among  some  of  them  may  be  de- 
cided by  others  who  are  not  interested ;  and  in  which  measures 
may  be  taken  to  compel  the  parties  to  accept  peace  on  equitable 
terms. t 

The  plan  of  Grotius  was  not  as  with  Cruce  a  union  of  states  and 
a  perpetual  conference,  but  periodical  conferences  of  independent 
and  equal  states,  in  which  their  disputes  not  otherwise  settled  were 
to  be  adjusted  by  diplomatic  negotiations,  such  as  happened  in  the 
Congress  of  Westphalia  (164-8),  and  in  the  Congress  of  Vienna 
(1814-15). 

It  is  usual  to  begin  the  consideration  of  projects  of  the  seventeenth 
century  with  the  Great  Design,  composed  by  Sully  but  cunningly 
attributed  to  Henry  IV;  and  it  is  eminently  proper  to  do  so,  because 
the  so-called  Design  of  Henry  IV  is  without  question  the  most 
famous  of  the  many  projects  advocating  a  federation  of  states  in 
order  to  secure  and  to  maintain  peace  between  nations.  The  project 
is  in  very  truth  the  classical  project  of  international  organization, 
and  it  has  been  both  the  inspiration  and  the  foundation  upon  whicli 

•Crucf,  loc.  cit,  pp.   102,  122. 

t  In  Bpeaking  of  the  pasaapo  of  Grotius  quoted  above,  the  eminent  Belpian 
publicist,  Professor  Ernest  Nys,  says:  "We  do  not  know  wliat  contemporary 
writers  thought  of  tlie  humanitarian  theories  of  the  Nouveau  Cyn6e;  it  seems, 
however,  that  it  exerted  some  influence.  Ilow  are  we,  indeed,  to  explain  that 
paflsape,  not  sufficiently  illuminated,  where  Orotius,  in  his  treatise  upon  The. 
Law$  of  War  and  Peace,  published  two  years  after  the  Nouveau  Cynfe,  extols 
the  union  and  the  conffresses  of  sovercipis? "  Ernest  Nys,  Etudes  de  droit  inter- 
national et  de  droit  politique,  1896,  p.  310. 

jOrotiufl:  De  Jure  liclli  ac  Pads,  Whewell's  translation,  vol.  ii,  Chap, 
xxiii,  Sec.  8,  Art.  4,  p.  40G. 


20  PEACE  THROUGH  JUSTICE 

well-wishers  of  their  kind  have,  consciously  or  unconsciously,  raised 
their  humbler  structures.  The  name  of  Henry  IV  is  a  name  to  con- 
jure with,  and  his  death  at  the  hands  of  a  fanatic,  at  the  very 
moment  when,  as  his  friend  and  associate  Sully  asserts,  he  was  put- 
ting himself  at  the  head  of  his  army  to  carry  into  effect  the  Great 
Design,  has  made  it  appear  almost  as  the  political  testament  of  the 
great  monarch. 

A  plan  which  Henry  conceived  could  not  be,  and  in  fact  has  not 
been,  lightly  rejected,  and  the  fact  that  it  was,  if  Sully  is  to  be 
trusted,  upon  the  point  of  execution  has  impressed  men  so  widely 
differing  as  Rousseau  and  Napoleon — to  mention  but  two — with  the 
possibility  of  its  realization.  Royalty  runs  better  than  common- 
folks,  a  fact  which  Sully  well  knew,  and  in  ascribing  it  to  his  royal 
master  he  prepared  the  minds  of  men  for  its  acceptance.  Still,  it  is 
not  disrespectful  to  the  memory  of  Henry  IV  to  suggest  that  a  plan 
fathered  by  a  statesman  such  as  Sully  would  be  in  itself  sufficient 
to  commend  it  to  thoughtful  consideration. 

But  in  ascribing  it  to  Henry  IV  it  is  fair  to  presume  that  Sully 
acted  from  no  unworthy  motives.  Europe  was  in  a  state  of  expect- 
ancy at  the  death  of  Henry,  and  Sully  sought  to  glorify  his  friend 
by  having  him  fall  upon  the  eve  of  the  realization  of  great  and 
beneficent  plans,  which,  in  Sully's  opinion  and  in  the  opinion  of  his 
generation,  would  have  immortalized  the  king  had  he  been  able  to 
realize  them.  The  important  thing  to  be  considered  is  not  so  much 
that  the  plan  was  not  the  plan  of  Henry,  but  that  it  ascribed  to 
Henry  views  which  were  agitating  the  public  mind  and  which  had 
been  voiced  by  the  New  Cineas  of  Cruce,  which  appears  to  have 
served  as  Sully's  model. 

But,  before  considering  these  two  interesting  and  important  ques- 
tions, which,  after  all,  are  minor  matters,  it  is  advisable  to  state  the 
purpose  of  the  Great  Design  and  in  more  detail  the  means  by  which 
it  was  to  be  realized.  The  Great  Design,  as  sketched  by  Sully,  con- 
templated the  formation  of  a  Christian  republic,  to  be  composed  of 
fifteen  states,  with  a  general  council  or  senate  of  approximately 
seventy  persons  representing  the  states  of  Europe,  to  deliberate 
on  affairs  as  they  arose,  to  occupy  themselves  with  discussing  dif- 
ferent interests,  to  pacify  quarrels,  to  throw  light  upon  and  oversee 
the  civil,  political,  and  religious  affairs  of  Europe,  whether  internal 


PEACE  THROUGH  JUSTICE  21 

or  foreign,  whose  decisions  should  have  the  force  of  irrevocable  and 
unchangeable  decrees,  as  being  considered  to  emanate  from  the 
united  authority  of  all  the  sovereigns,  pronouncing  as  freely 
as  absolutely.*  The  object  was  "  to  divide  Europe  equally  among 
a  certain  number  of  powers,  in  such  manner  that  none  of  them 
might  have  cause  either  of  envy  or  fear  from  the  possessions  or 
power  of  the  others,"  t  which  object,  if  accomplished,  would  result 
in  the  interest,  it  was  alleged,  of  universal  peace.  The  political 
part  of  the  program  was,  to  quote  Sully's  own  words,  "  to  divest 
the  House  of  Austria  of  the  Empire,  and  of  all  the  possessions  in 
Germany,  Italy,  and  the  Low  Countries."  t  That  is  to  say,  the  Great 
Design  proposed  to  humble  the  pride  and  power  of  Austria  by  force, 
and  the  federation  of  Europe,  produced  by  force,  was  to  be  main- 
tained by  the  sword.  As  Pfister  has  unquestionably  made  the  most 
careful  examination  ever  made,  both  of  the  manuscripts  as  well  as 
of  the  printed  editions  of  the  Economies  Royales  of  Sully,  it  seems 
advisable  to  state  in  his  words  the  brief  yet  adequate  summary  which 
he  has  made  of  the  Great  Design: 

Henceforth,  [he  says]  it  [Europe]  is  divided  into  fifteen 
dominions,  some  of  which  are  hereditary  (France,  Spain,  Great 
Britain,  Denmark,  Sweden  and  Lombardy);  others  arc  elective, 
(the  Papacy,  the  Empire,  Poland,  Hungary  and  Bohemia)  ; 
lastly  the  republics  (Venice,  Switzerland,  the  Italian  republics, 
the  Republic  of  the  Belgians).  These  fifteen  states  are  reduced 
to  an  approximate  equality  of  territory,  of  wealth,  of  power,  and 
they  form  a  perfect  equilibrium.  The  same  equilibrium  exists 
with  regard  to  the  three  religions :  Catholic,  Lutheran,  and 
Calvinistic.  Of  these  fifteen  states,  five  are  wholly  Catholic 
(Sully  docs  not  name  them),  five  are  entirely  Lutheran,  and 
five  Calvinistic.**     These  states  are  to  form  among  themselves 

•See  The  Great  Design  of  Henry  IV,  ed.  by  Edwin  D.  Mead,  1909,  pp.  34, 
et  seq. 

t  Ibid.,  p.  33. 

t  Ibid.,  p.  25. 

••  Such  is,  indeed,  the  thought  of  Sully,  if  not  exactly  his  lanpinpe.  With 
regard  to  the  territories  of  the  church,  he  states  that  neither  Calvinists  nor 
Lutherans  shall  be  persecuted  either  in  person  or  in  property,  but  that  they  sliall 
be  "only  enjoined  to  leave  tliu  country  and  to  take  with  them  tlieir  property 
within  a  year  and  a  day  after  Ix'ing  so  ordered,  or  in  default  thereof  to  accept 
the  religion  of  the  country."  Jlicliaud,  ii,  349.  Sully  immediately  follows 
this  up  by  adding:   "A  similar  course  shall  likewise  be  observed  with  regard  to 


22  PEACE  THROUGH  JUSTICE 

a  confederation,  administered  by  six  Provincial  Councils  and 
by  one  General  Council.  The  General  Council  is  to  settle  dis- 
putes between  the  sovereign  and  his  subjects  (henceforth  there 
will  be  no  more  revolutions!),  and  disputes  between  the  states 
(hence  no  more  wars  in  Christian  Europe!).  The  united  efforts 
of  the  confederation  have  but  a  single  object;  namely,  to  expel 
the  Turks  from  Europe.  The  General  Council  is  to  fix  the 
quota  of  troops  and  the  taxes  which  each  of  the  fifteen  powers 
is  to  furnish  for  this  new  crusade.  It  is  to  levy  troops  and  to 
raise  money;  to  direct  the  military  operations,  and  to  appor- 
tion the  conquests.  When  the  Turk  is  expelled,  Europe  will  at 
last  enjoy  this  great  and  inestimable  benefit:  Universal  peace.* 

Pfister  has  shown  the  genesis  and  the  growth  of  the  Great  Design 
by  a  careful  and  detailed  study  of  the  Economies  Royales  in  com- 
parison with  the  printed  edition  thereof,  and  he  thus  sums  up  his 
conclusions,  after  stating  that  the  passages  concerning  the  Great 
Design  are  not  to  be  found  in  the  original  manuscript  but  that  they 
were  added  from  time  to  time  until  they  assumed  final  form  in  the 
printed  edition  of  1638: 

The  clean-cut  policy  followed  by  Henry  IV,  aiming  at  the 
reduction  of  the  House  of  Austria  was,  if  I  may  dare  to  say  so, 
the  actual  foundation  of  all  these  combinations.  By  a  first 
exaggeration,  Sully  maintained  that  his  master  desired  to  strip 
Austria  of  its  possessions  in  Germany,  in  Bohemia,  and  in  Hun- 
gary, and  to  reduce  Spain  to  the  territory  of  the  Spanish 
Peninsula  (the  version  of  the  manuscript  of  the  Economies 
Royales).  Then  he  recasts  the  map  of  Europe  and  assigns 
to  one  or  the  other  of  the  states  the  provinces  taken  from  the 
Spanish  faction.  Obsessed  by  these  hallucinations,  he  com- 
poses a  Christian  Europe  of  fifteen  absolutely  equal  powers,  and 
completely  carried  away  by  his  fantasies,  he  finally  dreams  that 

the  kingdoms  of  France,  of  the  realms  of  Spain,  and  of  Great  Britain,  of  Denmark 
and  of  Sweden,  in  which  countries  only  those  forms  of  the  three  religions,  to  the 
exclusion  of  others,  may  be  professed  which  are  at  present  permitted  within 
them,  and  they  shall  be  dealt  with  as  hereinbefore  stated."  Saint-Simon  had 
given  the  same  interpretation  of  this  passage,  and  he  put  the  question:  "How 
eould  a  pope  confirm  the  existence,  the  duration,  and  firmly  establish  and  protect 
the  heresies  of  Calvin  and  of  Luther  so  that  each  of  the  heresies  constitute  a  third 
of  the  religious  unity  and  stand  on  an  equality  with  the  Catholic  Religion?" 
ParalUle  des  trois  premiers  rois  Bourbons,  Faugfire's  ed.,  pp.  138-9. 

*  Charles  Pfister,  Les  "  Economies  Royales  "  de  Sully  et  le  Grand  Dessein 
de  Henri  IV  (Revue  Historique,  1894,  vol.  56,  pp.  310-7). 


PEACE  THROUGH  JUSTICE  23 

universal  peace  might  reign  upon  this  earth.  The  Great  Project 
•was  therefore  not  conceived  by  him  at  one  and  the  same  time, 
but  was  formed,  as  it  were,  of  successive  layers  reared  one  upon 
the  other.* 

We  are  now  in  a  position  to  state  the  relation  between  the  New 
Cineas  of  Cruce  and  the  so-called  Great  Design  of  Henry  IV,  and  it 
appears  that  just  as  the  old  Cineas  advised  Pyrrhus  to  rejoice  his 
soul  in  peace  after  his  conquests,  so  did  Sully,  taking  a  leaf  from 
Cruce's  book,  essay  the  role  of  the  new  Cineas  to  his  royal  master, 
Henry  IV.  This  is  the  conclusion  reached  by  Pfister  after  a 
careful  examination  of  the  tractate  of  Cruce  and  of  the  Great 
Design  of  Sully.  To  quote  Pfister's  own  language,  "  Sully 
shared  the  ideas  of  his  time,  and  it  was  natural  that  after  hav- 
ing attributed  to  Henry  IV  great  designs  which  the  latter  never 
had,  he  carried  the  exaggeration  a  step  further  by  crediting  the 
king  with  the  project  of  maintaining  peace  and  creating  a  council 
to  adjudge  all  differences.  This  last  conception  does  not  appear 
to  us  to  be  even  original.  Sully  took  it,  it  would  seem,  from  a  very 
curious  book  of  the  epoch,  Le  Cynee  d'Estat,  written  by  Emeric 
Lacroix,  an  author  who  should  not  be  forgotten.  .  .  .  Sully  did  not 
go  so  far  as  Emeric  Lacroix.  He  only  wished  peace  among  Christian 
princes,  and  he  even  excluded  the  Czar  from  his  confederation  be- 
cause a  great  part  of  his  dominions  belonged  to  Asia  and  was  com- 
posed of  savage,  barbarian,  and  ferocious  nations.  But  he  demanded 
a  general  council  for  his  very  Christian  association  as  Lacroix  did  for 
the  entire  world.  Sully  did  not  even  seek  peace  for  the  Turks.  He 
hurled  against  them  the  united  Christian  world  and  expelled  them 
from  Europe  by  new  crusades ;  and  here  again  Sully  was  of  his  day 
and  generation,  while  Lacroix  looked  far  beyond  it."  t 

It  may  seem  strange,  but  it  is  nevertheless  a  fact  that  this  project 
"which  contemplated  an  armed  alliance  to  humble  the  House  of 
Austria,  to  rearrange  the  map  of  Europe,  and  to  maintain  by  force 
the  status  created  by  force,  should  have  been  considered  a  peace 
plan,  and  that  it  should  be  not  only  referred  to  as  such,  but  have 
been  taken  as  the  model  of  other  plans  really  pacific  and  disin- 
terested. 

•Pfister,  Les  "Economics  Royales,"  etc.    (Revue  Bistoriqur,   1894,  vol.  56, 
p.  318).  tll^'^-  PP-  «^^0-l- 


24  PEACE  THROUGH  JUSTICE 

The  influence  of  the  Great  Design  upon  subsequent  thought  has 
been  such  as  to  justify  this  somewhat  detailed  account  of  its  origin 
and  of  its  authorship.  William  Penn  refers  to  it  as  justifying  his 
scheme,  saying: 

I  will  not  then  fear  to  be  censured  for  proposing  an  expedient 
for  the  present  and  future  peace  of  Europe,  when  it  was  not 
only  the  design  but  glory  of  one  of  the  greatest  princes  that 
ever  reigned  in  it. 

The  Abbe  de  Saint-Pierre  specifically  calls  his  project  "  The  Abridg- 
ment of  the  Project  of  Universal  Peace  invented  by  King  Henry  the 
Great." 

After  showing  the  influence  of  the  Great  Design,  Pfister  says 
that  the  ideas  of  the  Abbe  de  Saint-Pierre,  which  were  admittedly 
based  upon  the  Great  Design,  were  in  1795  "  taken  up  again,  ar- 
ranged and  formulated  by  the  greatest  of  modern  philosophers," 
adding  "  Is  it  not  curious  that,  indirectly,  the  Economies  Royales 
of  Sully  exercised  an  important  influence  upon  the  ethical  system  of 
Immanuel  Kant."  *  It  is  indeed  curious,  but  greatest  and  stran- 
gest of  all  is  the  influence  which  the  Great  Design  apparently 
exercised  upon  the  great  Napoleon.  Thus  Count  de  Las  Cases,  in  his 
"Memorial  of  St.  Helena,"  quotes  the  Emperor  as  saying: 

One  of  my  greatest  ideas  was  the  bringing  together  and  the 
concentration  of  the  peoples  forming  a  geographical  unit  which 
revolution  and  policy  had  broken  up  and  cut  to  pieces.  Thus, 
though  scattered,  there  are  in  Europe  more  than  30,000,000 
Frenchmen,  15,000,000  Spaniards,  15,000,000  ItaHans, 
30,000,000  Germans,  and  of  each  of  these  peoples  I  would  fain 
have  made  a  separate  and  distinct  nation.  .  .  . 

After  this  summary  simplification,  it  would  have  been  easier 
to  give  one's  self  up  to  the  beautiful  dream  of  civilization ;  for 
in  such  a  state  of  things  there  would  have  been  a  greater  chance 
of  bringing  about  everywhere  a  unity  of  codes,  of  principles,  of 
opinions,  of  sentiments,  of  views,  and  of  interests.  Then,  per- 
haps, under  the  asgis  of  universal  enlightenment,  it  would  have 
been  possible  to  conceive  of  an  Amphictyonic  assembly  of  Greece, 
or  of  an  American  Congress  for  the  European  family  of  nations. t 

♦  Ibid.,  p.  334. 

t  Las  Cases'  Memorial  de  Sainte-H^Une,  1823,  vol.  4,  pt.  7,  pp.  125-6. 


PEACE  THROUGH  JUSTICE  25 

Upon  this  passage,  summarized,  but  not  quoted,  in  his  masterly' 
Confederation  of  Europe,  Mr.  Phillips  says :    "  Whether  this  plan 
had  ever  been  seriously  contemplated  or  not,  it  is  easy  to  recognize 
in  it  the  source  of  its  inspiration."  * 

In  1693  the  gentle  Penn  published  an  Essay  towards  the  Present 
and  Future  Peace  of  Europe,  proposing  the  establishment  of  a 
European  diet,  parliament,  or  estates,  moved  thereto,  as  he  says, 
by  the  project  of  Henry  IV.  The  sovereign  princes  of  Europe  were 
to  be  represented  in  the  diet,  according  to  their  revenues,  not 
upon  the  plane  of  equality.  The  diet  itself  was  to  meet  yearly, 
or  every  second  or  third  year.  The  diet,  or  assembly,  was  to  be 
called  the  sovereign,  or  imperial,  diet,  parliament,  or  estate  of 
Europe,  "  before  which  sovereign  assembly,  should  be  brought  all 
differences  depending  between  one  sovereign  and  another,  that  can- 
not be  made  up  by  private  embassies,  before  the  sessions  begin."  f 

It  occurred  to  the  generous  author  that  the  sovereign  Princes 
might  prefer  to  settle  their  disputes  by  arms  instead  of  submitting 
them  to  the  diet,  or  that,  if  submitted,  they  might  fail  to  execute 
the  judgments  of  the  assembly.  To  meet  these  various  contingencies, 
he  therefore  provided  that,  "  if  any  of  the  Sovereignties  that  consti- 
tute these  imperial  States,  shall  refuse  to  submit  their  claim  or  pre- 
tensions to  them,  or  to  abide  and  perform  the  judgment  thereof,  and 
seek  their  remedy  by  arms,  or  delay  their  compliance  beyond  the 
time  prefixed  in  their  resolutions,  all  the  other  Sovereignties,  united 
as  one  strength,  shall  compel  the  submission  and  performance  of  the 
sentence,  with  damages  to  the  suffering  party,  and  charges  to  the 
Sovereignties  that   obligated   their  submission."  t 

It  would  seem  that  the  Congress  of  Nations  contemplated  by  Pcnn 
was  to  settle  by  diplomats,  not  necessarily  by  judges  trained  in  the 
law,  disputes  of  all  kinds  whatsoever,  whether  they  were  justiciable  or 
non-justiciable.  A  distinction  does  not  seem  to  be  drawn  between 
these  two  categories,  so  that  diplomats  would  or  might  pass  upon  and 
determine  each.    But  however  highly  we  may  appreciate  the  diplomat 

•Walter  Alison  Phillips'  The  Confederation  of  Europe:  A  Btudi/  of  the 
European  Alliance,  1S13-1823,  aa  an  Experiment  in  the  International  Organiza- 
tion of  Peace,  1914,  p.  20. 

f  William  Penn,  An  Essay  towards  the  Present  and  Future  Peace  of  Europe, 
sec.  iv. 


26  PEACE  THROUGH  JUSTICE 

in  his  proper  sphere,  the  wisdom  of  mankind  has  established  courts  of 
justice  for  the  settlement  of  justiciable  questions.  A  further  objection 
to  Penn's  project  is  the  unequal  representation  of  the  states,  for  equal- 
ity before  the  law  is  as  true  of  nations  as  of  individuals.  Finally,  the 
project  seems  to  contain  within  it  the  germs  of  a  league  to  enforce 
peace  and  of  an  international  police  which  would  make  it  objection- 
able to  those  who  believe  in  public  opinion  as  a  sanction  of  law, 
whereas  the  provision  for  the  use  of  force  will  commend  it  to  those 
who  believe  in  force  as  the  sanction  of  law. 

The  chief  projects  of  the  eighteenth  century  are,  as  has  been 
said,  those  of  the  Abbe  de  Saint-Pierre,  Jean  Jacques  Rousseau, 
Jeremy  Bentham,  and  Immanuel  Kant. 

The  purpose  of  the  Abbe  de  Saint-Pierre  is  indicated  in  the  title, 
Perpetual  Peace,  which  he  gave  to  the  various  editions  of  his  project. 
In  the  year  1712  he  published  anonymously,  at  Cologne,  a  volume 
small  enough  to  be  slipped  in  the  pocket,  but  weighty  in  thought  and 
purpose,  entitled  "  Memoirs  to  Render  Peace  Perpetual  in  Europe.'* 
This  is  in  the  nature  of  an  essay  or  of  a  first  sketch.  In  the  two- 
volume  edition  of  his  treatise,  published  in  1713,  he  states  the  rela- 
tion of  his  project  to  that  of  Henry  IV,  and  in  the  third  volume, 
which  appeared  in  1717,  this  relation  appears  in  the  title.  He  in- 
forms us  in  the  preface  to  the  first  volume  of  the  enlarged  edition  that 
a  friend,  to  whom  he  had  shown  the  first  sketch,  informed  him  that 
"  Henry  IV  had  formed  a  project  similar  in  substance.  In  the 
Memoirs  of  the  Duke  of  Sully,  his  Prime  Minister,  and  in  the  history 
of  his  reign  by  Mr.  de  Perefixe,  I  even  found  that  this  project  had 
already  been  agreed  to  and  approved  by  a  large  number  of  sovereigns 
at  the  commencement  of  the  past  century."  * 

The  title  to  the  third  volume,  which  appeared  in  1717,  not  only 
points  out  the  relationship,  but  mentions  the  success  with  which,  as 
Sully  would  have  us  believe,  the  Great  Design  of  Henry  IV  had  been 
crowned.  The  first  sentence  of  the  title  thus  defines  the  good  Abbe's 
purpose:  "Project  of  a  treaty  to  render  peace  perpetual  between 
Christian  sovereigns  and  to  maintain  constantly  free  commerce  be- 
tween the  nations  to  strengthen  in  greater  degree  the  sovereign 
houses  upon  the  throne."    The  second  part  of  the  title  is  evidently 

*  Abb6  de  Saint-Pierre's  Projet  pour  rendre  la  Paix  perpituelle  en  Europe 
(1713),  vol.  1,  p.  ix. 


PEACE  THROUGH  JUSTICE  27 

to  comance  the  reader  by  the  mere  title  page  of  the  feasibility  of  the 
scheme,  as  he  declares  it  to  have  been  "  proposed  formally  by  Henry, 
the  great  king  of  France,  agreed  to  by  Queen  Elizabeth,  by  James 
I,  King  of  England,  her  successor,  and  by  most  of  the  other  poten- 
tates of  Europe." 

Just  as  Sully  had  obtained  a  hearing  for  the  Great  Design,  by 
ascribing  it  to  Henry  IV,  so  Saint-Pierre  obtained  a  hearing  for  his 
Project  of  Perpetual  Peace  by  declaring  it  to  be  substantially  the 
Great  Design  of  Henry  IV.  In  1728  Saint-Pierre  published  an 
abridgment  of  the  project,  which  the  title  declares  to  have  been 
"  invented  by  King  Henry  the  Great,  approved  by  Queen  Elizabeth, 
by  King  James,  her  successor,  by  the  republics,  and  divers  other 
potentates,  adapted  to  the  present  state  of  affairs  in  Europe." 

Without  attempting  in  this  place  a  comparison  between  the  Great 
Design  and  Saint-Pierre's  Perpetual  Peace,  the  purpose  of  the  first 
■was  to  create  by  force  of  arms  a  new  state  of  affairs  in  Europe,  and 
to  maintain,  by  force  if  necessary,  the  equilibrium  thus  brought 
about  by  force.  The  Abbe  de  Saint-Pierre  believed  that  it  was  not 
necessary  to  make  Europe  over  by  force,  but  to  procure,  by  force  if 
necessary,  the  acceptance  of  the  status  created  by  the  Treaty  of 
Westphalia  of  1648  and  of  Utrecht  of  1713-14,  in  the  conclusion 
of  which  he  was  interested  as  secretary  to  the  French  plenipoten- 
tiary. In  simplest  terms,  the  Abbe's  project  was  to  maintain  the 
status  quo,  which  could,  in  his  opinion,  be  done  by  a  treaty  of  alli- 
ance, consisting  of  twelve  fundamental  provisions  which  he  stated  in 
the  form  of  a  treaty,  and  which  in  his  opinion  only  needed  signature 
in  order  to  be  effective.  Peace  was  thus  to  be  ushered  in  by  a  stroke 
of  the  pen. 

The  project  of  the  Abbe  de  Saint-Pierre  was,  as  has  been  stated, 
based  upon  the  Great  Design  of  Henry  IV  and  contemplated  a  union, 
if  possible,  of  all  Christian  sovereigns,  with  a  perpetual  congress  or 
senate  in  which  the  sovereigns  should  be  represented  by  deputies. 
The  union  was,  in  the  first  instance,  to  be  voluntary,  but  after  enough 
states  had  joined  it  to  make  fourteen  votes,  a  sovereign  refusing  to 
enter  was  to  be  declared  an  enemy  to  the  repose  of  Europe,  and  force 
was  to  be  used  against  him  until  he  adhered  to  it  or  until  he  was 
entirely  despoiled  of  his  territories.  The  organ  of  the  union,  called 
the  Senate,  was  to  consist  of  some  four  and  twenty  members,  and 


28  PEACE  THROUGH  JUSTICE 

before  this  body  complaints  of  the  sovereign  members  of  the  union 
were  to  be  laid.  The  dispute  was  to  be  decided  by  the  senate  pro- 
visionally by  a  majority,  finally  by  three-fourths  of  the  members, 
and  the  failure  of  a  sovereign  or  members  of  the  union  to  accept 
the  decision  required  the  European  society  or  union  to  declare  war 
against  the  recalcitrant  member  and  to  continue  it  until  he  was  dis- 
armed, the  judgment  executed,  the  costs  of  the  war  paid  by  him,  and 
the  country  conquered  from  him  forever  separated  from  his  do- 
minions. The  purpose  which  Saint-Pierre  had  in  mind  was  thus  to 
confederate  Europe  by  means  of  a  treaty  to  be  signed  by  the  repre- 
sentatives of  European  powers,  and  the  project  itself  has  the  form 
of  a  treaty  for  such  signature.  He  regarded  the  treaty  of  Utrecht, 
which  framed  and  contained  the  provisions  of  the  treaty  of  West- 
phalia, as  creating  a  satisfactory  state  of  affairs,  and  his  confedera- 
tion was  intended  to  perpetuate  the  status  created  by  these  treaties ; 
and  by  the  creation  of  a  senate  to  legislate  for  members  of  the  union 
and  to  decide  conflicts  arising  among  them  he  hoped  to  prevent  a 
resort  to  arms,  as  by  express  agreement  wars  between  the  members 
of  the  union  were  to  be  renounced. 

Such  is,  in  summary  terms,  Saint-Pierre's  project  for  perpetual 
peace,  and  it  is  perhaps  possible  to  estimate  the  value  of  the  plan 
by  this  simple  statement  of  its  provisions,  but  in  view  of  the  very 
great  influence  exercised  by  the  Abbe's  project — for,  as  pointed  out 
by  our  countryman,  Henry  Wheaton,  in  his  History  of  the  Law  of 
Nations  *  and  by  the  distinguished  German  publicist,  von  Holtzen- 
dorff,  in  his  "  Idea  of  Perpetual  World  Peace  ",  t  its  main  provisions 
were  incorporated  in  the  German  confederation  of  1815,  and  as 
pointed  out  by  Mr.  Phillips  in  his  "  Confederation  of  Europe  ",J 

*  In  speaking  of  the  abridged  plan  of  Saint-Pierre,  published  in  1729,  reduced 
to  five  fundamental  articles,  Wheaton  says  that  "  the  almost  verbal  coincidence 
of  these  articles  with  those  of  the  fundamental  act  of  the  Germanic  confederation 
established  by  the  Congress  of  Vienna  in  1815  is  remarkable."  Wheaton's 
History  of  the  Law  of  Nations  in  Europe  and  America,  1845,  p.  263. 

t "  The  project  of  the  Abbe  de  Saint-Pierre  is  of  great  interest  from  various 
standpoints.  One  would  be  inclined  to  maintain  that  its  author  had  a  presenti- 
ment of  the  Germanic  confederation  of  1815."  Franz  v.  HoltzendorflF's  Die  Idee 
des  eidgen  ViJlkerfriedens  (Sammlung  gemeinverstandlicher  tcnssenscJiaftlicher 
Vortrage,  1882,  vol.  xvii,  p.  687). 

I  Speaking  of  the  Great  Design,  Mr.  Phillips  says,  "  It  inspired  the  Projet 
de  Paix  perp^tuelle  of  the  Abb6  de  Saint-Pierre,  and  through  him  the  Emperor 


PEACE  THROUGH  JUSTICE  29 

the  Abbe's  project  was,  it  would  seem,  the  inspiration  of  the  Holy 
Alliance — it  is  advisable  to  state  the  fundamental  articles  of  Saint- 
Pierre's  plan,  twelve  in  number,  which  could  only  be  changed  by 
unanimous  consent,  omitting  the  "  important  articles ",  eight  in 
number,  and  the  "  useful  articles  ",  likewise  eight  in  number,  which 
could  be  changed  at  any  time  by  a  three-fourths  vote  of  the  senate. 
The  fundamental  articles  are: 

1.  The  present  Sovereigns,  by  their  undersigned  Deputies, 
have  agreed  to  the  following  Articles.  There  shall  be  from  this 
day  forward  a  Societj^,  a  permanent  and  perpetual  Union  be- 
tween the  undersigned  Sovereigns,  and,  if  possible,  among  all 
Christian  Sovereigns,  to  preserve  unbroken  peace  in  Eu- 
rope. .    .    . 

The  Sovereigns  shall  be  perpetually  represented  by  their 
Deputies  in  a  perpetual  Congress  or  Senate  in  a  free  city. 

2.  The  European  Society  shall  not  at  all  interfere  with  the 
Government  of  any  State,  except  to  preserve  its  constitution, 
and  to  render  prompt  and  adequate  assistance  to  rulers  and 
chief  magistrates  against  seditious  persons  and  rebels.    .    .    . 

3.  The  Union  shall  employ  its  whole  strength  and  care  in 
order,  during  regencies,  minorities,  or  feeble  reigns,  to  prevent 
injury  to  the  Sovereign,  either  in  his  person  or  prerogatives, 
or  to  the  Sovereign  House,  and  in  case  of  such  shall  send  Com- 
missioners to  inquire  into  the  facts,  and  troops  to  punish  the 
guilty.   .    .    .  ^ 

4.  Each  Sovereign  shall  be  contented,  he  and  his  successors, 
with  the  Territory  he  actually  possesses,  or  which  he  is  to  pos- 
sess by  the  accompanj-ing  Treaty.  .  .  .  No  Sovereign,  nor  mem- 
ber of  a  Sovereign  Family,  can  be  Sovereign  of  any  State  besides 
that  or  those  which  are  actually  in  the  possession  of  his  family. 
The  annuities  which  the  Sovereigns  owe  to  the  private  persons 
of  another  State  shall  be  paid  as  heretofore.  No  Sovereign 
shall  assume  the  title  of  Lord  of  any  Country  of  which  he  is 
not  in  possession,  and  the  Sovereigns  shall  not  make  an  ex- 
change of  Territory  or  sign  any  Treaty  among  themselves  ex- 
cept by  a  majority  of  the  four-and-twcnty  votes  of  the  Union, 
which  shall  remain  guarantee  for  the  execution  of  reciprocal 
promises. 

Alexander  I.'s  idea  of  a  universal  Holy  Alliance.  .  .  .  It  is  impossible  to  examine 
this  project  without  being  struck  by  the  fact  that  there  is  scarcely  one  of  its 
provisions  which  does  not  emerge,  at  least  as  a  subject  of  debate  among  the 
Powers,  during  the  years  of  European  reconstruction  after  1814"  (Phillipa, 
op.  cit.,  pp.  19,  22-23). 


80  PEACE  THROUGH  JUSTICE 

5.  No  Sovereign  shall  henceforth  possess  two  Sovereignties, 
either  hereditary  or  elective,  except  that  the  Electors  of  the 
Empire  may  be  elected  Emperors,  so  long  as  there  shall  be 
Emperors.  If  by  right  of  succession  there  should  fall  to  a 
Sovereign  a  State  more  considerable  than  that  which  he 
possesses,  he  may  leave  that  which  he  possesses,  and  settle  him- 
self on  that  which  is  fallen  to  him. 

6.  The  Kingdom  of  Spain  shall  not  go  out  of  the  House  of 
Bourbon,  .    .    . 

7.  The  Deputies  shall  incessantly  labor  to  codify  all  the 
Articles  of  Commerce  in  general,  and  between  different  nations 
in  particular ;  but  in  such  a  manner  that  the  laws  may  be  equal 
and  reciprocal  towards  all  nations,  and  founded  upon  Equity. 
The  Articles  which  shall  have  been  passed  by  a  majority  of  the 
votes  of  the  original  deputies,  shall  be  executed  provisionally 
according  to  their  Form  and  Tenor,  till  they  be  amended  and 
improved  by  three-fourths  of  the  votes,  when  a  greater  number 
of  members  shall  have  signed  the  Union. 

The  Union  shall  establish  in  different  towns  Chambers  of 
Commerce,  consisting  of  Deputies  authorized  to  reconcile,  and 
to  judge  strictly  and  without  Appeal,  the  disputes  that  shall 
arise  either  in  relation  to  Commerce  or  others  matters,  between 
the  subjects  of  different  Sovereigns,  in  value  above  ten  thousand 
pounds ;  the  other  suits,  of  less  consequence,  shall  be  decided, 
as  usual,  by  the  judges  of  the  place  where  the  defendant  lives. 
Each  Sovereign  shall  lend  his  hand  to  the  execution  of  the 
judgments  of  the  Chambers  of  Commerce,  as  if  they  were  his 
own  judgments. 

Each  Sovereign  shall,  at  his  own  charge,  extenninate  his 
inland  robbers  and  banditti,  and  the  pirates  on  his  coasts,  upon 
pain  of  making  reparation;  and  if  he  has  need  of  help,  the 
Union  shall  assist  him. 

8.  No  Sovereign  shall  take  up  arms,  or  commit  any  hostility, 
but  against  him  who  shall  be  declared  an  enemy  to  the  European 
Society.  But  if  he  has  any  cause  to  complain  of  any  of  the 
Members,  or  any  demand  to  make  upon  them,  he  shall  order 
his  Deputy  to  present  a  memorial  to  the  Senate  in  the  City  of 
Peace,  and  the  Senate  shall  take  care  to  reconcile  the  difference 
by  its  mediating  Commissioners ;  or,  if  they  cannot  be  recon- 
ciled, the  Senate  shall  judge  them  by  arbitral  judgment,  by 
majority  of  votes  provisionally,  and  by  three-fourths  of  the 
votes  definitely.  This  judgment  shall  not  be  given  until  each 
Senator  shall  have  received  the  instructions  and  orders  of  his 
master  upon  that  point,  and  until  he  shall  have  communicated 
them  to  the  Senate. 


PEACE  THROUGH  JUSTICE  31 

The  Sovereign  who  shall  take  up  arms  before  the  Union  has 
declared  war,  or  who  shall  refuse  to  execute  a  regulation  of  the 
Society,  or  a  judgment  of  the  Senate,  shall  be  declared  an  enemy 
to  the  Society,  and  it  shall  make  war  upon  him,  until  he  be  dis- 
armed, and  until  its  judgment  and  regulations  be  executed, 
and  he  shall  even  pay  the  charges  of  the  war,  and  the  country 
that  shall  be  conquered  from  him  at  the  close  of  hostilities  shall 
be  forever  separated  from  his  dominions. 

If,  after  the  Society  is  formed  to  the  number  of  fourteen 
votes,  a  Sovereign  should  refuse  to  enter  thereinto,  it  shall 
declare  him  an  enemy  to  the  repose  of  Europe,  and  shall  make 
war  upon  him  until  he  enter  into  it,  or  until  he  be  entirely 
despoiled. 

9.  There  shall  be  in  the  Senate  of  Europe  four-and-twenty 
Senators  or  Deputies  of  the  United  Sovereigns,  neither  more 
nor  less,  namely: — France,  Spain,  England,  Holland,  Savoy^ 
Portugal,  Bavaria  and  Associates,  Venice,  Genoa  and  Associ- 
ates, Florence  and  Associates,  Szcitzcrland  and  Associates,  Lor- 
rain  and  Associates,  Sweden,  Denmark,  Poland,  the  Pope,  Mus- 
covy, Austria,  Courland  and  Associates,  Prussia,  Saxony,  Pala- 
tine and  Associates,  Hanover  and  Associates,  Ecclesiastical 
Electors  and  Associates.  Each  Deputy  shall  have  but  one 
vote. 

10.  The  Members  and  Associates  of  the  Union  shall  con- 
tribute to  the  expenses  of  the  Society,  and  to  the  subsidies  for 
its  security,  each  in  proportion  to  his  revenues,  and  to  the 
riches  of  his  people,  and  everyone's  quota  shall  at  first  be  regu- 
lated provisionally  by  a  majority,  and  afterwards  by  three- 
fourths  of  the  votes,  when  the  Commissioners  of  the  Union 
shall  have  taken,  in  each  State,  what  instructions  and  informa- 
tion shall  be  necessary  thereupon ;  and  if  anyone  is  found  to 
have  paid  too  much  provisionally,  it  shall  afterwards  be  made 
up  to  him,  both  in  principal  and  interest,  by  those  who  shall 
have  paid  too  little.  The  less  powerful  Sovereigns  and  Asso- 
ciates in  forming  one  vote,  shall  alternately  nominate  their 
Deputy  in  proportion  to  their  quotas. 

11.  When  the  Senate  shall  deliberate  upon  anything  press- 
ing and  imperative  for  the  security  of  the  Society,  cither  to 
prevent  or  quell  sedition,  the  question  may  be  decided  by  a 
majority  of  votes  provisionally,  and,  before  it  is  deliberated 
upon,  they  shall  begin  by  deciding,  by  majority,  whether  the 
matter  is  imperative. 

12.  None  of  the  eleven  fundamental  Articles  above  named 
shall  be  in  any  point  altered,  without  the  unanimous  consent  of 
all  the  members ;  but  as  for  the  other  Articles,  the  Society  may 


82  PEACE  THROUGH  JUSTICE 

always,  by  three-fourths  of  the  votes,  add  or  diminish,  for  the 
common  good,  whatever  it  shall  think  fit.* 

In  the  preface  to  the  Project  the  Abbe  de  Saint-Pierre  makes 
several  very  wise  remarks,  which  have  not  yet  lost  their  aptness. 
Thus  he  says,  "  The  present  constitution  of  Europe  can  only  pro- 
duce almost  continuous  wars,  because  it  can  never  have  sufficient 
guaranty  of  the  execution  of  treaties."  And  again,  he  calls  atten- 
tion to  the  impossibility  of  peace  based  upon  the  principle  of  equilib- 
rium, thus :  "  The  balance  of  power  between  the  House  of  France 
and  the  House  of  Austria  cannot  result  in  a  sufficient  guaranty 
against  foreign  wars  nor  against  civil  wars,  and  consequently  cannot 
result  in  sufficient  security  either  for  the  preservation  of  nations  or 
the  preservation  of  commerce."  t 

It  has  been  said  that  the  Abbe's  plan  forecast  the  Germanic  con- 
federation of  1815,  and  not  unnaturally  so,  because  the  project 
itself  was  based  upon  the  Abbe's  conception  of  the  Germanic  corps, 
as  he  calls  it,  and  indeed  he  draws  the  comparison,  on  the  one  hand, 
between  the  Germanic  corps,  which  existed  in  his  time,  and  the 
European  corps,  which  he  hoped  to  call  into  being.  Continuing,  the 
Abbe  de  Saint-Pierre  says  that  "  the  same  motives  and  the  same 
means  which  have  sufficed  formerly  for  a  permanent  society  of  all 
the  sovereignties  of  Germany  are  within  the  reach  and  at  the  disposal 
of  the  sovereigns  of  to-day,  and  may  suffice  for  the  formation  of  a 
permanent  society  of  all  the  Christian  sovereignties  of  Europe."  J  The 
possibility  of  this  he  bases  upon  the  fact  that  "  the  approbation  which 
most  of  the  sovereigns  of  Europe  gave  to  the  project  of  the  Euro- 
pean society  proposed  to  them  by  Henry  IV  [called  by  Saint-Pierre, 
Henry  the  Great]  justifies  us  in  hoping  that  a  like  project  will  be 
approved  by  their  successors."  t 

After  making  the  above  statements,  the  good  Abbe  puts  his 
entire  case  in  the  form  of  a  premise :  "  If  the  European  Society 
herein  proposed  can  procure  to  the  Christian  princes  sufficient  surety 
of  a  perpetual  peace  within  and  beyond  their  estates,  there  is  none 

*  The  above  translation  is  taken  from  W.  Evans  Darby,  International  Tri- 
bunals, 4th  ed.,  1904,  pp.  70-6.  The  original  French  text  is  to  be  found  in 
Projet  pour  rendre  la  Paix  perp4tuelle  en  Europe,  1713,  vol.  1,  pp.  284-356. 

t  Ibid.,  p.  vi. 

I  Ibid.,  p.  X. 


PEACE  THROUGH  JUSTICE  83 

of  them  to  whom  it  would  not  "be  a  greater  advantage  to  sign  a 
treaty  for  the  establishment  of  this  society  than  not  to  sign  it." 
He  next  states  as  a  fact  that,  "  The  European  society  herein  pro- 
posed can  procure  to  the  crown  princes  sufficient  guaranty  of  a  per- 
petual peace  within  and  without  their  estates."  This  being  the  case, 
he  draws  the  logical  conclusion  that  "  there  will  be  none  of  them  to 
whom  it  will  not  be  more  advantageous  to  sign  the  treaty  for  the 
establishment  of  the  society  than  not  to  sign  it."  * 

Abbe  Saint-Pierre's  project  has  been  stated  at  very  considerable 
length,  and  the  twelve  fundamental  articles  quoted  in  his  own  words. 
His  reasons  for  believing  that  his  project  would  be  successful  have 
likewise  been  stated  in  his  own  language,  for  the  twofold  reason 
that  the  project  was  a  serious,  high-minded  and  wholly  disinterested 
attempt  to  establish  a  permanent  peace  by  means  of  a  European 
society  or  union  based  upon  the  maintenance  of  the  then  existing 
status.  Therein  lay  its  strength  and  its  weakness — its  strength, 
because  the  sovereigns  of  Europe  would  be  more  inclined  to  sign  a 
treat}'  guaranteeing  them  their  thrones,  their  possessions  and  the 
rights  of  their  successors  against  war  from  without  and  rebellion 
from  within ;  its  weakness,  because  it  precluded  the  possibility  of 
change,  and  change  is  apparently  the  one  constant  factor  in  the 
world's  history.  It  closed  the  door  to  the  ambition  of  the  sovereign 
who  might  wish  to  increase  his  dominions,  and  it  blighted  the  hope 
of  the  people  who  might  wish  to  change  their  sovereigns  or  their 
forms  of  government,  and  by  so  doing  better  their  own  condition. 

Rousseau  was  indeed  a  friendly  critic  of  the  project,  but  he  criti- 
cized the  Abbe  for  having  appealed  to  the  intelligence  and  judgment 
of  the  princes  of  Europe,  instead  of  making  the  lower  appeal  to 
their  interests,  in  a  passage  which  well  deserves  quotation: 

I  would  not  dare  [he  said]  to  reply  with  the  Abbe  dc  Saint- 
Pierre  that  the  veritable  glory  of  princes  consists  in  advancing 
the  interests  and  the  happiness  of  their  subjects;  that  all  their 
interests  are  subordinated  to  their  reputation,  and  that  the 
reputation  which  is  acquired  with  the  wise  depends  upon  the 
good  which  we  do  to  our  fellow  beings;  that  perpetual  peace 
being  the  greatest  of  all  undertakings,  and  tlic  most  likely  to 
cover  its  author  with  immortal  glory,  this  undertaking,  being  the 

*  Projet  pour  rcndre  la  Paix  pcrpCtuellc  en  Europe,  vol.  1,  pp.  xiii-xiv. 


84  PEACE  THROUGH  JUSTICE 

most  useful,  is  therefore  the  most  honorable  to  sovereigns,  the 
only  one  which  is  not  stained  with  blood,  rapine,  tears,  and 
maledictions;  and  finally,  the  surest  way  of  obtaining  distinc- 
tion among  the  mob  of  kings  is  to  work  for  the  public  good. 
Let  us  leave  to  the  demagogues  such  reasons,  which  in  the 
cabinets  of  the  ministers  overwhelmed  with  ridicule  the  author 
of  these  projects,  but  let  us  not  despise,  like  them,  his  argu- 
ments, and  whatever  may  be  the  virtue  of  princes,  let  us  rather 
discourse  of  their  interests.* 

The  great  philosopher  Leibnitz,  to  whom  the  Abbe  de  Saint-Pierre 
had  sent  his  project,  wrote  in  reply,  "  I  have  read  carefully  the 
Project  of  Permanent  Peace  for  Europe,  which  the  Abbe  de  St. 
Pierre  has  done  me  the  honor  to  send  me,  and  I  am  persuaded  that 
such  a  proposal,  taken  as  a  whole,  is  feasible,  and  that  its  execution 
would  be  one  of  the  most  useful  things  in  the  world.  Although  my 
support  is  not  worth  much,  I  have  thought  that  my  sense  of  obliga- 
tion compels  me  not  to  withhold  it,  but  to  add  some  remarks  of  my 
own  for  the  satisfaction  of  an  author  of  such  merit,  who  must  have 
had  much  force  of  character  and  firmness  to  have  dared,  and  been 
able,  to  oppose  with  success  the  crowd  of  prejudices  and  the  taunts 
of  mockery."  f 

Leibnitz,  however,  considered  that  the  subordination  of  the  empire 
was  a  serious  defect,  and  he  proceeded  to  point  out  two  respects  in 
which  the  system  of  the  empire  was  superior  to  that  suggested  by 
Saint-Pierre.  In  the  first  place,  Leibnitz  stated  that  the  tribunal 
of  the  imperial  chamber  (Reichskammergericht)  consists  of  judges 
and  assessors  free  to  follow  their  consciences  without  being  bound 
by  the  instructions  of  the  princes  and  states  nominating  them,  and 
in  the  second  place,  he  objected  that,  in  the  Abbe's  project  there 
was  no  provision  for  hearing  the  complaints  of  subjects  against 
their  sovereigns,  whereas  in  the  empire  subjects  could  plead  against 
their  princes  or  their  magistrates. 

"  The  comment  of  Leibnitz  is  interesting  ",  says  Mr.  Phillips,  "  be- 
cause it  anticipates  the  objection  which,  a  hundred  years  later,  Castle- 
reagh  considered  fatal  to  the  system  of  guarantees,  precisely  similar 
to  that  suggested  in  the  third  article  of  St.  Pierre's  project,  which 

*  Extrait  du  projet  de  paix  perp^tuelle  de  M.  I'Abhe  de  Saint-Pierre,  Oeuvres 
completes  de  J.  J.  Rousseau,  P.  Pourrat  Fr6res,  Paris,  1832,  vol.  6,  pp.  432-3. 
f  Darby,  op.  cit.,  p.  98. 


PEACE  THROUGH  JUSTICE  85 

the  reactionary  powers  sought  to  formulate  at  Aix-la-Chapelle 
and  did  formulate  in  the  Troppau  Protocol.  The  Abbe  de  Saint- 
Pierre  pointed  out  how  the  proposals  in  this  article  would  not 
weaken  but  strengthen  the  princes,  by  guaranteeing  to  each  of  them 
*  not  only  their  states  against  all  foreign  invasion,  but  also  their 
authority  against  all  rebellions  of  their  subjects.'  In  a  Memoran- 
dum on  the  treaties  presented  to  the  powers  at  Aix-la-Chapelle, 
Castlereagh  wrote : 

The  idea  of  an  Alliance  Solidaire  by  which  each  state  shall 
be  bound  to  support  the  state  of  succession,  government  and 
possession  within  all  other  states  from  violence  and  attack, 
upon  condition  of  receiving  for  itself  a  similar  guarantee,  must 
be  understood  as  morally  implying  the  previous  establishment 
of  such  a  system  of  general  government  as  may  secure  and 
enforce  upon  all  kings  and  nations  an  internal  system  of  peace 
and  justice.  Till  the  mode  of  constructing  such  a  s^'stem  shall 
be  devised,  the  consequence  is  inadmissible,  as  nothing  could  be 
more  immoral,  or  more  prejudicial  to  the  character  of  govern- 
ment generally,  than  the  idea  that  their  force  was  collectively 
to  be  prostituted  to  the  support  of  established  power,  without 
any  consideration  of  the  extent  to  which  it  was  abused. 

"  In  writing  this,"  Mr.  Phillips  continues,  "  Castlereagh  was 
unconsciously  repeating  and  expanding  a  comment  on  the  Abbe's 
third  article  made  long  before  by  Rousseau,  who  in  his  Jugement 
sur  la  paix  perpetuelle  had  written :  '  One  cannot  guarantee  princes 
against  the  revolt  of  their  subjects  without  at  the  same  time  guar- 
anteeing subjects  against  the  tyranny  of  princes.  Otherwise  the 
institution  could  not  possibly  survive.'  "  * 

Partisans  of  peace  projects  insist  that  their  plans  are  feasible 
and  that  their  critics  are  not  justified  in  denouncing  them  as  imprac- 
ticable, because  until  they  have  been  tried  it  cannot  be  known  that 
they  would  fail.  This  plea  for  the  suspension  of  judgment  cannot  be 
granted  the  Saint-Pierre,  because,  as  Wheaton  and  HoltzcndorfF  have 
stated,  the  project  was  tried  in  the  Germanic  Confederation  of  1815 
and  it  failed,  and  as  Mr.  Phillips  has  pointed  out  in  his  Confedera- 
tion of  Europe,  Abbe  Saint-Pierre's  principles  were  weighed  and 
found  wanting  in  the  Holy  Alliance.     Saint-Pierre's  project  is  ncver- 

•  Phillips,  op.  cit.,  pp.  24-5. 


86  PEACE  THROUGH  JUSTICE 

theless  interesting  and  important,  because,  as  HoltzendorfF  has  said, 
and  truly,  "  His  plan  limits  in  reality  and  with  tolerable  accuracy 
the  field  within  which,  at  least  since  the  end  of  the  former  century, 
the  discussion  concerning  the  possibility  of  perpetual  peace  has  in 
its  essentials  taken  place."  * 

It  is  usual  to  consider  Rousseau's  project  of  perpetual  peace,  but 
it  will  not  be  necessary  in  this  connection  to  dwell  upon  it  at  length, 
because  it  is  in  reality  an  analysis  and  justification  of  Saint-Pierre's 
views,  uncouthly  expressed  by  the  author  but  exquisitely  expressed 
by  Rousseau. 

Rousseau  lays  down  three  premises  from  which  he  draws  the  con- 
clusion that  peace  is  possible.  These  premises  are  (1)  that  with  the 
exception  of  Turkey  there  prevails  among  all  the  peoples  of  Europe 
a  social  connection,  imperfect  but  more  compact  than  the  general 
and  loose  ties  of  humanity;  (2)  that  the  imperfection  of  this  society 
makes  the  condition  of  those  who  compose  it  worse  than  would  be 
the  deprivation  of  all  society  amongst  them;  (3)  that  those  primary 
bonds  which  render  this  society  harmful  make  it  at  the  same  time 
easily  capable  of  improvement,  so  that  all  its  members  may  derive 
their  happiness  from  that  which  actually  constitutes  their  misery, 
and  change  the  state  of  war  which  prevails  among  them  into  an 
abiding  peace. 

How  can  this  be  done?  Rousseau  disregards  the  twelve  funda- 
mental articles  of  the  Abbe's  project  and  thus  restates  the  five 
articles  which  replaced  them  in  Saint-Pierre's  abridgment  of  the 
original  project:  That  the  contracting  sovereigns  shall  establish  a 
perpetual  and  irrevocable  alliance,  and  shall  name  their  plenipotenti- 
aries in  a  diet  or  permanent  congress  in  which  all  the  differences  of 
the  contracting  parties  shall  be  adjusted  by  arbitration  or  by  judicial 
decisions  (Article  1)  ;  that  the  number  of  sovereigns  shall  be  specified 
whose  plenipotentiaries  shall  have  the  right  to  vote  in  the  diet,  those 
who  shall  be  invited  to  accede  to  the  treaty,  the  order,  the  time  and 
the  manner  by  which  the  presidency  shall  pass  from  one  to  another  for 
an  equal  period,  and  finally  the  quota  of  contributions  of  money  and 
the  manner  of  assessing  them  to  meet  the  common  expenses  (Article 
2)  ;  that  the  confederation  shall  guarantee  to  each  of  its  members  the 
possession  and  government  of  their  territories  according  to  actual 
*  Die  Idee  des  ewigen  Viilkerfriedens,  loc.  cit.,  pp.  19-20. 


PEACE  THROUGH  JUSTICE  87 

possession  and  the  treaties  then  in  effect,  that  disputes  arising  between 
them  should  be  settled  by  the  diet,  and  that  the  members  of  the  diet 
should  renounce  the  right  to  settle  their  disputes  by  force  and  also 
renounce  the  right  to  make  war  on  one  another  (Article  3) ;  that  the 
member  violating  the  fundamental  treaty  should  be  placed  under 
the  ban  of  Europe  and  prescribed  as  a  common  enemy,  that  is  to  say, 
if  it  refuses  to  execute  the  judgments  of  the  diet,  if  it  makes  prepara- 
tions for  war,  if  it  takes  up  arms  to  resist  or  to  attack  any  of  the 
allies,  it  should  be  proceeded  against  by  the  allies  and  reduced  to 
obedience  (Article  4) ;  that  the  provisional  decisions  of  the  diet 
should  be  by  a  majority,  the  final  decisions  requiring  a  majority  of 
three-fourths  of  the  members  of  the  diet  acting  under  instructions 
from  their  governments,  that  the  diet  could  legislate  for  the  well-being 
of  Europe,  but  could  not  change  any  of  the  provisions  of  the  funda- 
mental articles  without  the  unanimous  consent  of  the  contracting 
powers  (Article  5).* 

In  essence  Rousseau's  plan  is  that  of  Saint-Pierre,  and  indeed 
Rousseau  specifically  disclaimed  originality.  He  had  undertaken  to 
arrange  and  to  edit  the  papers  and  printed  works  of  the  good  Abbe, 
and  the  project  which  bears  his  name  is  in  reality  the  Abbe's  with 
such  comments  as  occurred  to  him  in  his  analysis  and  exposition  of 
the  Abbe's  project. 

Nothing  is  more  common  in  books  of  political  theory  than  the 
statement  that  Rousseau  was  incompetent  in  matters  political,  and 
yet  his  Social  Contract  has  profoundly  influenced  government  as 
well  as  authorities  of  government,  and  its  main  propositions  cannot 
be  gainsaid,  especially  in  the  Americas,  where  the  peoples  have 
separated  themselves  from  Europe  and  created  states  to  their  liking, 
and  where  they  have  changed  governments  and  forms  of  govern- 
ment whenever  they  have  felt  disposed  to  do  so.f 

Rousseau  abridged  or  restated  the  Abbe  de  Saint-Pierre's  project 

♦  Extrait  du  projet  de  Paix  perp6tuelle  de  M.  I'Abbd  de  Saint-Pierre,  loc.  cit., 
pp.  423-5. 

f  VVhcaton  was  a  man  of  affairs  as  well  as  a  theorist,  and  ho  sa5-s  in  his 
History  of  the  Laxc  of  Nations  in  Europe  and  America  that  "  Rousaoau  pub- 
lished in  17G1  a  little  work  to  which  he  modestly  gave  the  title  of  Extrait  da 
Projet  de  Paix  perpdtuclle  de  M.  I'Abbd  de  Saint-Pierre,  but  which  is  stamped 
with  the  marks  of  Rousseau's  peculiar  original  penius  as  a  systcm-buildcr  and 
reaaoner  upon  the  problem  of  social  science."     (P.  2G4.) 


.'ii)ir><)o 


88  PEACE  THROUGH  JUSTICE 

of  a  perpetual  peace,  prefixing  to  it  a  masterly  introduction,  and  he 
followed  it  up  with  a  criticism  called  the  "  Judgment  on  the  Perpetual 
Peace,"  in  which  he  laid  his  finger  not  merely  upon  the  weakness  of 
Saint-Pierre's  project  but  upon  the  simplicity  of  the  good  Abbe  in 
imagining  that  princes  could  be  counted  upon  to  do  the  right  thing 
if  it  were  only  shown  them.  Rousseau  was  hardly  less  a  dreamer 
than  Saint-Pierre  but  he  realized  that,  if  dreams  were  to  be  put  into 
effect  by  princes  and  the  great  of  the  world,  it  could  only  be  done 
by  appealing  to  the  motives  that  influence  them,  namely,  their  ambi- 
tion and  their  self-interest. 

In  his  "  Judgment  on  the  Perpetual  Peace  ",  Rousseau  says : 

In  regard  to  the  disputes  between  prince  and  prince,  can  we 
hope  to  subject  men  to  a  superior  tribunal  who  dare  boast  that 
they  only  hold  their  powers  by  the  sword,  and  who  only  mention 
God  himself  because  he  is  in  heaven?  Will  sovereigns  submit 
their  quarrels  to  judicial  solution  when  the  rigor  of  the  laws  has 
never  been  able  to  force  private  citizens  to  do  so  in  their  own 
cases?  A  simple  gentleman  who  has  sustained  an  injury  dis- 
dains to  carry  his  complaints  before  the  court  of  the  marshals 
of  France,  and  do  you  wish  that  a  king  should  lay  his  before  a 
European  diet?  There  is,  moreover,  this  difference,  that  one 
sins  against  the  laws  and  doubly  exposes  his  life,  whereas  the 
other  only  exposes  his  subjects;  that  he  employs,  in  taking  up 
arms,  a  right  admitted  by  every  human  being,  and  for  which 
he  claims  to  be  responsible  to  God  alone.  .    .    . 

Incessantly  misled  by  the  appearance  of  things,  princes  will 
reject,  then,  this  peace  when  they  weigh  their  interests  them- 
selves ;  what  will  be  the  result  when  these  interests  are  weighed 
by  their  ministers,  whose  needs  are  always  opposed  to  those 
of  the  people  and  almost  always  to  those  of  the  prince?  Minis- 
ters need  war  to  make  them  indispensable,  to  embarrass  the 
prince  so  that  he  cannot  extricate  himself  without  their  aid, 
and  to  ruin  the  state  if  necessary  rather  than  that  they  should 
lose  their  places.  .   .   . 

Nor  must  we  believe  with  the  Abbe  de  Saint-Pierre  that  even 
with  good-will,  which  neither  princes  nor  their  ministers  will 
ever  have,  it  would  be  easy  to  find  a  favorable  moment  for  the 
execution  of  this  system,  as  it  would  be  necessary  in  such  a 
case  that  the  sum  of  private  interests  should  not  outweigh  the 
common  interest,  and  that  each  should  believe  he  saw  in  the 
well-being  of  all  the  greatest  good  to  be  hoped  for  himself. 
Now,  this  demands  a  union  of  wisdom  in  so  many  heads  and  a 


PEACE  THROUGH  JUSTICE  89 

union  of  relations  in  so  many  interests  that  we  can  hardly  hope 
for  a  fortuitous  union  of  all  the  necessary  circumstances.  How- 
ever, if  this  agreement  does  not  happen  there  is  only  force  to 
take  its  place,  in  which  event  it  is  no  longer  a  question  of  per- 
suading but  of  compelling,  and  instead  of  writing  books  we 
must  raise  troops. 

Thus,  although  the  project  might  be  very  wise,  the  means  of 
executing  it  betrayed  the  simplicity  of  the  author.  He  imagined 
in  his  goodness  that  it  was  only  necessary  to  assemble  a  con- 
gress and  propose  therein  his  articles,  that  they  would  be  signed 
and  that  all  would  be  ended.  Let  us  admit  that  in  all  the 
projects  of  this  honest  man  he  saw  well  enough  the  effect  of 
things  when  they  were  established,  but  that  his  judgment  was 
that  of  a  child  as  to  the  means  of  putting  them  into  effect. 

I  do  not  need  to  add  more  to  prove  that  the  project  of  the 
Christian  republic  is  not  chimerical  than  to  name  its  first  author, 
for  assuredly  Henry  IV  was  neither  a  fool  nor  Sully  a  visionary.* 

The  value  of  Rousseau's  plan  consists  in  the  skill  with  which  he 
justified  the  Abbe's  purpose,  and  if  the  arguments  which  he  himself 
advances  do  not  warrant  the  confederation,  they  do  at  least  justify 
the  international  organization  of  a  looser  kind  for  the  negotiation 
of  treaties  and  the  settlement  of  disputes  peaceably  by  proper 
agencies. 

Bentham's  "  Plan  for  an  Universal  and  Perpetual  Peace  "  appears 
to  have  been  written  between  1786  and  1789,  but  it  was  first  published 
in  1839.  In  justification  of  it  he  says,  "The  happiest  of  man- 
kind are  sufferers  by  war ;  and  the  wisest,  nay,  even  the  least  wise, 
are  wise  enough  to  ascribe  the  chief  of  their  sufferings  to  that 
cause."  The  project  consists  of  some  fourteen  articles,  to  which  are 
prefixed  "two  fundamental  propositions: — 1.  The  reduction  and 
fixation  of  the  force  of  the  several  nations  that  compose  the  Euro- 
pean system ;  2.  Tlie  emancipation  of  the  distant  dependencies  of 
each  state."  t  In  the  matter  of  armament  it  may  be  said  that  the 
distinguished  reformer  was  of  the  opinion  that  "  general  and  per- 
petual treaties  might  be  formed,  limiting  the  number  of  troops  to 
be  maintained."  The  cliief  proposal  to  maintain  the  pence  after 
the  limitation  of  armament  and  the  emancipation  of  distant  depcn- 

•  RouBflpau'a  Jugemcnt  aur  la  Paico  pcrpftucUe,  loc.  cit..  vol.  6,  pp.  452-6. 
f  f'rinriplrit   of   International   Law,   essay    iv,    liowrings    id.    of    The    Works 
of  Jeremy  Bcntham,  pt.  viii,  p.  540. 


40  PEACE  THROUGH  JUSTICE 

idencies  was  "  by  the  establishment  of  a  common  court  of  judicature 
for  the  decision  of  differences  between  the  several  nations,  although 
such  a  court  were  not  to  be  armed  with  any  coercive  powers."  * 
The  creation  and  operation  of  such  a  court  was,  in  his  opinion,  the 
necessary  complement  of  the  reduction  of  armament,  because  war  is 
the  consequence  of  difference  of  opinion  between  two  nations,  because 
there  is  no  tribunal  common  to  them.  "  Establish  a  common  tribu- 
nal," he  says,  "  the  necessity  for  war  no  longer  follows  from  differ- 
ence of  opinion.  Just  or  unjust,  the  decision  of  the  arbiters  will 
save  the  credit,  the  honor  of  the  contending  party."  t  The  tribunal 
contemplated  by  Bentham  was  apparently  a  diplomatic  body,  which 
he  calls  a  congress  or  diet,  and  which  he  says  "  might  be  constituted 
by  each  power  sending  two  deputies  to  the  place  of  meeting:  one  of 
these  to  be  the  principal,  the  other  to  act  as  an  occasional  substi- 
tute." The  proceedings  of  the  congress  or  diet  were  to  be  public, 
and  "  its  power  would  consist  ",  to  quote  his  own  language,  "1.  In 
reporting  its  opinion ;  2.  In  causing  that  opinion  to  be  circulated 
in  the  dominions  of  each  state;  ...  3.  After  a  certain  time,  in 
putting  the  refractory  state  under  the  ban  of  Europe."  It  will  be 
seen  that  Bentham  contemplated  the  use  of  force,  for  in  commenting 
upon  the  third  point  he  says,  "  There  might,  perhaps,  be  no  harm 
in  regulating,  as  a  last  resource,  the  contingent  to  be  furnished  by 
the  several  states  for  enforcing  the  decrees  of  the  court."  He  felt, 
however,  that  a  free  press  could  be  trusted  to  create  a  public  opinion 
in  behalf  of  compliance  with  the  judgments  of  the  court,  and  that 
the  resort  to  force  would  be  unnecessary. 

It  would  seem  that  Bentham  had  in  mind  the  submission  to  the  con- 
gress or  diet  of  all  disputes  between  nations,  although  it  might  be 
inferred  that  in  the  use  of  the  term  judicature  or  court  Bentham  was 
speaking  of  justiciable  disputes.  However  that  may  be,  the  plan  in 
its  entirety  was  nullified  by  the  prerequisites,  for  nations  are  unwill- 
ing to  renounce  colonies,  even  though  they  may  be  the  source  of  war, 
and  disarmament  or  the  limitation  thereof  will  no  doubt  continue  to 
be  unacceptable  until  a  satisfactory  substitute  has  been  proposed  for 
war  and  incorporated  in  the  practice  of  nations. 

The  philosopher  Kant  was  no  doubt  influenced  by  the  Treaty  of 
Rastatt,  which  had  just  been  negotiated  at  the  Congress  of  Bale 
•  Ibid.,  p.  547.  t  Ibid.,  p.  552. 


PEACE  THROUGH  JUSTICE  41 

in  1795,  just  as  the  Abbe  de  Saint-Pierre's  project  was  due  to  the 
Congress  of  Utrecht  of  1714-15.  Both  are  in  the  form  of  treaties. 
The  philosopher  of  Konigsberg  drafted  six  prehminary  articles,  the 
acceptance  of  which  he  believed  to  be  essential  to  perpetual  peace. 
They  were  interesting  in  his  day  and  generation,  and  they  are  as 
timely  to-day  as  when  first  drafted,  although  they  are  likely  to  wait 
many  a  day  for  their  acceptance.  They  are  therefore  quoted  in 
full,  without  comment,  as  comment  seems  unnecessary: 

1.  No  treaty  of  peace  shall  be  regarded  as  valid,  if  made  with 
the  secret  reservation  of  material  for  a  future  war. 

2.  No  state  having  an  independent  existence — whether  it  be 
great  or  small — shall  be  acquired  by  another  through  inherit- 
ance, exchange,  purchase  or  donation. 

3.  Standing  armies  {miles  perpetuus),  shall  be  abolished  in 
course  of  time. 

4.  No  national  debts  shall  be  contracted  in  connection  with 
the  external  affairs  of  the  state. 

5.  No  state  shall  violently  interfere  with  the  constitution  and 
administration  of  another. 

6.  No  state  at  war  with  another  shall  countenance  such  modes 
of  hostility  as  would  make  mutual  confidence  impossible  in  a 
subsequent  state  of  peace :  such  are  the  employment  of  assassins 
(percussores)  or  of  poisoners  (venefici),  breaches  of  capitula- 
tion, the  instigating  and  making  use  of  treachery  (perduellio) 
in  the  hostile  state.* 

Kant  considered  that  to  secure  perpetual  peace  the  civil  constitu- 
tion of  every  state  must  be  republican  and  that  all  international  right 
must  be  grounded  upon  a  federation  of  free  states.  The  term  "  repub- 
lican "  as  used  by  Kant  is,  however,  to  be  understood  as  synonymous 
with  representative  government,  and  he  believed  that  neither  a  des- 
potism nor  a  democracy  would  prevent  war,  but  that  representatives 
of  the  people  could  be  trusted  to  pass  upon  the  question  of  war  and 
peace  reasonably.  We  have  unfortunately  learned  that  constitutional, 
in  the  sense  of  representative,  government  docs  not  necessarily  have 
the  effect  which  Kant  hoped  it  would  have.  A  confederation  of  states 
was,  in  the  philosopher's  opinion,  requisite  to  international  peace. 
It  should  be  observed,  however,  that  it  is  a  federation  of  free  states ; 

•  Perpetual  Peace,  A  Philosophical  Essay  by  Immanu^l  Kant,  1795,  transla- 
tion of  M.  Campbell  Smitli,  1915,  pp.  107-14. 


42  PEACE  THROUGH  JUSTICE 

that  is  to  say,  a  federation  in  which  the  states  do  not  lose  their  iden- 
tity or  their  sovereign  prerogatives,  and  Kant  was  very  careful  to 
point  out  that  it  was  not  to  be  a  permanent  confederation.  It  was 
to  be  brought  about  by  the  free  consent  of  the  states  desiring  to 
enter  into  it,  and  continuance  in  it  was  likewise  to  be  voluntary. 
Kant's  language  on  this  point  is  so  important  as  to  suggest  quota- 
tion, and  in  view  of  the  peace  conferences  which  have  been  called 
by  the  Czar  of  Russia  and  which  have  met  at  The  Hague,  although 
unfortunately  not  at  stated  periods,  Kant's  reference  to  The  Hague 
has  much  more  than  a  passing  interest.  However,  he  should  be 
allowed  to  speak  for  himself,  which  he  does  as  follows: 

Such  a  general  association  of  states,  having  for  its  object  the 
preservation  of  peace,  might  be  termed  the  permanent  congress 
of  nations.  Such  was  the  diplomatic  conference  formed  at  The 
Hague  during  the  first  part  of  the  eighteenth  century,  with  a 
similar  view,  consisting  of  the  ministers  of  the  greater  part  of  the 
European  courts  and  even  of  the  smallest  republics.  In  this 
manner  all  Europe  was  constituted  into  one  federal  state,  of 
which  the  several  members  submitted  their  differences  to  the 
decision  of  this  conference  as  their  sovereign  arbiter.   .    .    . 

What  we  mean  to  propose  is  a  general  congress  of  nations, 
of  which  both  the  meeting  and  the  duration  are  to  depend  en- 
tirely on  the  sovereign  wills  of  the  several  members  of  the  league, 
and  not  an  indissoluble  union  like  that  which  exists  between  the 
several  states  of  North  America  founded  on  a  municipal  con- 
stitution. Such  a  congress  and  such  a  league  are  the  only  means 
of  realizing  the  idea  of  a  true  public  law,  according  to  which  the 
differences  between  nations  would  be  determined  by  civil  proceed- 
ings as  those  between  individuals  are  determined  by  civil  judica- 
ture, instead  of  resorting  to  war,  a  mean  of  redress  worthy  only 
of  barbarians.* 

Kant  does  not  work  out  in  detail  the  idea  of  a  congress,  meeting 
from  time  to  time,  to  agree  upon  principles  of  international  law, 
nor  does  he  suggest  the  establishment  of  an  international  court  to 
administer  the  law  which  the  practice  and  the  custom  of  nations 
has  made,  or  which  has  been  agreed  to  in  the  Congress  of  Nations. 
Both  these  ideas  present  themselves  to  the  mind  of  the  reader,  even 

*  Rechtslehre,  pt.  2,  sec.  61    (Immanuel  Kant's  Sdmmtliche  Werke,  Rosen- 
kranz  and  Schubert  ed.,  1838,  pt.  9,  p.  204 )  ;  Wheaton,  op.  cit.,  p.  754. 


PEACE  THROUGH  JUSTICE  48 

though  they  may  not  have  been  formulated  and  expressed  by  Kant, 
who  only  says  that 

If  it  be  a  duty  to  cherish  the  hope  that  the  universal  dominion 
of  public  law  may  ultimately  be  realized,  by  a  gradual  but  con- 
tinued progress,  the  establishment  of  perpetual  peace  to  take 
the  place  of  those  mere  suspensions  of  hostility  called  treaties 
of  peace,  is  not  a  mere  chimera,  but  a  problem,  of  which  time, 
abridged  by  the  uniform  and  continual  progress  of  the  human 
mind,  will  ultimately  furnish  a  satisfactory  solution.* 

The  German  philosopher  certainly  was  one  of  the  choice  spirits  not 
only  of  his  time,  but  of  all  time. 


The  various  projects  which  have  been  outlined  in  passing,  with- 
out entering  into  their  details,  made  but  a  limited  appeal ;  they  made 
little  or  no  impression  upon  the  public  at  large.  They  contemplated 
changes  in  the  society  of  nations  which  would  either  have  sacrificed  or 
jeopardized  the  independence  of  nations.  They  disregarded  sys- 
tematically the  equality  of  nations.  For  the  most  part  they  advo- 
cated either  a  perpetual  and  forcible  union,  or  at  least  a  voluntary 
federation,  and  they  required  for  their  operation  a  change  of  thought 
as  well  as  a  change  in  the  standard  of  conduct.  They  were  opposed 
to  existing  conditions,  and  for  that  reason  they  lacked  a  substantial 
basis  on  which  to  rear  permanent  structures.  Mr.  Ladd,  on  the  con- 
trary, accepted  nations  as  actually  constituted,  proposed  a  Congress 
of  such  nations,  in  which  each  would  be  represented  with  an  equal 
vote,  and  the  establishment  of  a  court  of  justice  for  the  settlement 
of  disputes  between  them.  Living  in  a  free  country  where  public 
opinion  is  controlled  by  the  people  as  a  whole,  he  realized  the  neces- 
sity of  following  public  opinion,  and  the  spirit  of  his  project  was 
that  an  educated  public  opinion  might  in  time  force  itself  upon 
the  government  of  its  choice.  Interesting  in  itself,  Ladd's  project 
deserves  examination  and  consideration  by  reason  of  its  prophecy 

•Kant,  Zum  ewigen  Frieden   (Hiimintliche  Werke),  loc.  cit.,  pt.  7,  p.  291; 
Wheaton,  op.  cit.,  p.  753. 


44  PEACE  THROUGH  JUSTICE 

of  a  conference,  and  may  not  be  dismissed  with  a  mere  mention. 
The  various  projects  which  have  been  mentioned  were  drafted  by 
Europeans  and  had  particular  reference  to  European  conditions 
and  institutions  insofar  as  actual  conditions  were  considered  or 
referred  to.  Mr.  Ladd's  plan  betrays  its  American  origin, 
although  he  himself  refers  to  and  relies  upon  Swiss  experience  and 
institutions,  substituting  an  international  for  a  national  congress 
and  an  international  for  a  supreme  court. 

Mr.  Ladd's  plan  for  the  establishment  of  a  Congress  to  make 
international  law  and  a  court  to  interpret  and  apply  it  is  found  in 
his  Essay  on  a  Congress  of  Nations,  published  in  Boston  in  the  year 
1840,  and  it  is  not  too  much  to  say  that  this  little  book  contained 
within  its  covers,  and  within  singularly  narrow  compass,  not  merely 
the  arguments  for,  but  the  arguments  against  the  establishment  of 
both  institutions. 

The  plan  consisted  of  two  parts: 

1st.  A  congress  of  ambassadors  from  all  those  Christian 
and  civilized  nations  who  should  choose  to  send  them,  for  the 
purpose  of  settling  the  principles  of  international  law  by  com- 
pact and  agreement,  of  the  nature  of  a  mutual  treaty,  and  also 
of  devising  and  promoting  plans  for  the  preservation  of  peace, 
and  meliorating  the  condition  of  man. 

2d.  A  court  of  nations,  composed  of  the  most  able  civilians 
in  the  world,  to  arbitrate  or  judge  such  cases  as  should  be 
brought  before  it,  by  the  mutual  consent  of  two  or  more  con- 
tending nations. 

Upon  this  firm  foundation  Mr.  Ladd  rests  his  structure,  which 
will  one  day  take  visible  form  in  a  stated  periodic  conference  of  the 
nations  at  The  Hague  and  in  an  international  court  of  justice,  like- 
wise at  The  Hague. 

For  the  details  and  elaboration  necessary  for  a  correct  under- 
standing of  the  nature  and  the  role  each  institution  was  destined  to 
play  in  the  economy  of  nations,  we  might  refer  to  Mr.  Ladd's  Essay 
without  further  description,  analysis,  or  quotation,  and  yet  so  to 
do  would  be  unfair  to  Mr.  Ladd,  whose  main  principles  should  be 
here  stated  as  far  as  possible  in  his  own  words,  in  order  that  his 


PEACE  THROUGH  JUSTICE  45 

project  might  be  compared  with  the  classic  projects  already  men- 
tioned, and  in  order  that  the  reader  might  see  its  relation  to  the 
international  movement  which  began  with  the  Czar's  manifesto  for 
an  international  conference  at  The  Hague.  The  material  portion 
of  Mr.  Ladd's  views,  both  as  to  the  Congress  and  as  to  the  Court  of 
Nations,  are  therefore  set  out  in  his  own  words  in  this  place. 
First,  as  to  the  congress  of  nations : 

1.  Our  plan  is  composed  of  two  parts,  viz.,  a  Congress  of 
Nations  and  a  Court  of  Nations,  either  of  which  might  exist 
without  the  other,  but  they  would  tend  much  more  to  the  happi- 
ness of  mankind  if  united  in  one  plan,  though  not  in  one  body. 
A  congress  of  ambassadors  from  all  those  Christian  and  civilized 
nations  who  should  choose  to  unite  in  the  measure,  is  highly 
desirable  to  fix  the  fluctuating  and  various  points  of  interna- 
tional law,  by  the  consent  of  all  the  parties  represented,  mak- 
ing the  law  of  nations  so  plain  that  a  court  composed  of  the 
most  eminent  jurists  of  the  countries  represented  at  the  Con- 
gress, could  easily  apply  those  principles  to  any  particular  case 
brought  before  them.  Such  a  congress  would  provide  for  the 
organization  of  such  a  court ;  but  they  would  not  constitute 
that  court ;  which  would  be  permanent,  like  the  Supreme  Court 
of  the  United  States,  while  the  Congress  would  be  transient  or 
periodical,  with  a  change  of  members  like  the  Congress  or 
Senate  of  the  United  States.  It  is  not  proposed  that  the 
legislative  and  judiciary  bodies  shall  be  united.  The  Congress 
of  Nations,  therefore,  is  one  body,  and  the  creator  of  the 
Court  of  Nations,  which  is  another  distinct  body.  Any  nation 
represented  at  the  Congress  might  change  its  delegates  as  often 
as  it  pleased,  like  other  ambassadors,  but  the  members  of  the 
court  would  hold  their  offices  during  good  behavior. 

2.  The  Congress  of  Nations  would  be  organized  by  a  con- 
vention, composed  of  ambassadors  from  all  those  Christian  or 
civilized  nations  who  should  concur  in  the  measure,  each  nation 
having  one  vote,  however  numerous  may  be  the  ambassadors 
sent  to  the  convention.  .  .  . 

8.  After  organization,  the  Congress  would  proceed  to  the 
consideration  of  the  first  principles  of  the  law  of  nations  as 
they  are  laid  down  by  civilians  and  agreed  to  by  treaties, 
throwing  all  the  light  which  the  congregated  wisdom  of  the 
civilized  world  contains  on  the  principles  of  international  law, 
and  applying  those  principles  to  classes  of  individual  cases. 
No  principle  would  be  established,  unless  it  had  the  unanimous 


46  PEACE  THROUGH  JUSTICE 

consent  of  all  the  nations  represented  at  the  Congress,  and  rati- 
fied by  all  the  governments  of  those  nations,  so  that  each  and 
every  principle  would  resemble  a  treaty,  by  which  each  nation 
represented  bound  itself  to  every  other  nation  represented,  to 
abide  by  certain  expressed  principles  in  their  future  intercourse 
with  one  another;  which  agreement  or  treaty  shall  not  be 
annulled,  except  by  the  consent  of  all  the  parties  making  it. 

4.  That  the  progress  of  such  a  Congress  would  be  very  slow, 
it  must  be  allowed ;  but  so  far  from  being  the  worse,  it  would 
be  the  better  for  that,  and  more  likely  to  produce  permanent 
and  useful  results.  It  would  not  be  necessary  that  each  article 
of  the  compact,  thus  entered  into,  should  be  ratified  by  the 
(nations  concerned,  before  the  Congress  proceeded  to  settle 
other  points ;  but  the  whole,  having  been  agreed  on  in  Congress, 
could  be  submitted  to  the  governments  represented,  and  such 
points  as  should  be  unanimously  adopted  should  be  considered 
as  settled  points  of  international  law,  and  the  remainder  left 
open  for  further  investigation;  and  thus  all  the  most  material 
points  of  international  law  would  be  forever  settled,  and  other 
points  put  in  a  fair  way  of  being  settled.  The  Court  of  Na- 
tions need  not  be  delayed  until  all  the  points  of  international 
law  were  settled ;  but  its  organization  might  be  one  of  the  first 
things  for  the  Congress  of  Nations  to  do,  and  in  the  mean 
time,  the  Court  of  Nations  might  decide  cases  brought  before 
it  on  principles  generally  known  and  acknowledged. 

Next,  as  to  the  court  of  nations: 

1.  It  is  proposed  to  organize  a  Court  of  Nations,  composed 
of  as  many  members  as  the  Congress  of  Nations  shall  previously 
agree  upon,  say  two  from  each  of  the  powers  represented  at 
the  Congress.  The  power  of  the  court  to  be  merely  advisory. 
It  is  to  act  as  a  high  court  of  admiralty,  but  without  its  enforc- 
ing powers.  There  is  to  be  no  sheriff,  or  posse,  to  enforce  its 
commands.  It  is  to  take  cognizance  only  of  such  cases  as  shall 
be  referred  to  it,  by  the  free  and  mutual  consent  of  both  parties 
concerned,  like  a  chamber  of  commerce;  and  is  to  have  no 
more  power  to  enforce  its  decisions  than  an  ecclesiastical  court 
in  this  country. 

2.  The  members  of  this  court  are  to  be  appointed  by  th^ 
governments  represented  in  the  Congress  of  Nations,  and  shall 
hold  their  places  according  to  the  tenure  previously  agreed  on 
in  the  Congress — probably   during  good  behavior.      Whether 


PEACE  THROUGH  JUSTICE  47 

they  should  be  paid  by  the  governments  sending  them,  or  by  the 
nations  represented  in  the  Congress  conjointly,  according  to 
the  ratio  of  their  population  or  wealth,  may  be  agreed  on  in 
the  Congress.  The  court  should  organize  itself  by  choosing 
a  president  and  vice-presidents  from  among  themselves,  and 
appoint  the  necessary  clerks,  secretaries,  reporters,  etc. ;  and 
they  should  hear  counsel  on  both  sides  of  the  questions  to  be 
judged.  They  might  meet  once  a  year  for  the  transaction  of 
business,  and  adjourn  to  such  time  and  place  as  they  should 
think  proper.  Their  meeting  should  never  be  in  a  country 
which  had  a  case  on  trial.  These  persons  should  enjoy  the 
same  privileges  and  immunities  as  ambassadors. 

3.  Their  verdicts,  like  the  verdicts  of  other  great  courts, 
should  be  decided  by  a  majority,  and  need  not  be,  like  the 
decrees  of  the  Congress,  unanimous.  .  .  . 

4.  All  cases  submitted  to  the  court  should  be  judged  by  the 
true  interpretation  of  existing  treaties,  and  by  the  laws  enacted 
by  the  Congress  and  ratified  by  the  nations  represented ;  and 
where  these  treaties  and  laws  fail  of  establishing  the  point  at 
issue,  they  should  judge  the  cause  by  the  principles  of  equity 
and  justice. 

5.  In  cases  of  disputed  boundary,  the  court  should  have  the 
power  to  send  surveyors  appointed  by  themselves,  but  at  the 
expense  of  the  parties,  to  survey  the  boundaries,  collect  facts 
on  the  spot,  and  report  to  the  court.  .   .   . 

6.  This  court  should  not  only  decide  on  all  cases  brought 
before  it  by  any  two  or  more  independent,  contending  nations, 
but  they  should  be  authorized  to  offer  their  mediation  where 
war  actually  exists,  or  in  any  difficulty  arising  between  any 
two  or  more  nations  which  would  endanger  the  peace  of  the 
world.  .  .  . 

8.  It  should  be  the  duty  of  a  Court  of  Nations,  from  time 
to  time,  to  suggest  topics  for  the  consideration  of  the  Congress, 
as  new  or  unsettled  principles,  favorable  to  the  peace  and  wel- 
fare of  nations,  would  present  themselves  to  the  court,  in  the 
adjudication  of  cases.  .    .    . 

9.  There  are  many  other  cases  beside  those  above  mentioned, 
in  which  such  a  court  would  either  prevent  war  or  end  it.  A 
nation  would  not  be  justified,  in  the  opinion  of  the  world,  in 
going  to  war,  when  there  was  an  able  and  impartial  umpire  to 
judge  its  case;  and  many  a  dispute  would  be  quashed  at  the 
outset,  if  it  were  known  that  the  world  would  require  an  impar- 
tial investigation  of  it  by  able  judges. 


48  PEACE  THROUGH  JUSTICE 

Mr.  Ladd,  it  will  be  recalled,  regarded  the  congress  as  a  diplo- 
matic body  and  the  court  as  a  judicial  body,  and  the  only  credit  he 
takes  to  himself  is  for  their  separation.  The  line  of  separation, 
however,  is  on  one  occasion  blurred  or  indistinctly  drawn,  as  he 
allows  the  members  of  the  court  "  to  offer  their  mediation  where 
war  actually  exists  or  in  any  difficulty  arising  between  any  two  or 
more  nations  which  would  endanger  the  peace  of  the  world."  It 
would  seem  that  providing  the  court  with  powers  of  mediation  testi- 
fies to  the  goodness  of  his  heart  rather  than  to  the  strength  of  his 
understanding,  for  mediation  is  political,  therefore  diplomatic.  It 
can  hardly  be  called  a  judicial  function.  The  matter,  however,  is 
trifling,  and  is  mentioned  as  perhaps  the  chief  if  not  the  sole  in- 
stance in  which  Mr.  Ladd  disregarded  the  separation  of  functions 
of  the  two  international  agencies. 

In  the  following  passage  Mr.  Ladd  outlines  at  once  the  policy  of 
his  Congress  and  the  actual  program  of  the  Hague  Conferences: 

The  Congress  of  Nations  is  to  have  nothing  to  do  with  the 
internal  affairs  of  nations,  or  with  insurrections,  revolutions, 
or  contending  factions  of  people  or  princes,  or  with  forms  of 
government,  but  solely  to  concern  themselves  with  the  inter- 
course of  nations  in  peace  and  war.  1st.  To  define  the  rights 
of  belligerents  towards  each  other;  and  endeavor,  as  much  as 
possible,  to  abate  the  horrors  of  war,  lessen  its  frequency,  and 
promote  its  termination.  2d.  To  settle  the  rights  of  neutrals, 
and  thus  abate  the  evils  which  war  inflicts  on  those  nations  that 
are  desirous  of  remaining  in  peace.  3d.  To  agree  on  measures 
of  utility  to  mankind  in  a  state  of  peace ;  and  4th,  To  organize 
a  Court  of  Nations.  Those  are  the  four  great  divisions  of 
the  labors  of  the  proposed  Congress  of  Nations. 

The  resemblance  between  Ladd's  project  and  the  Hague  Confer- 
ences is  so  patent  as  to  need  no  comment,  and  while  it  would  be  an 
exaggeration  to  insist  that  the  Conference  is  the  direct  result  of 
Ladd's  Essay  on  a  Congress  of  Nations,  it  would  be  unfair  not  to 
state  that  Ladd's  project  became  widely  known  in  America,  where 
public  opinion  was  created  in  its  behalf;  that  it  was  published  in 
England,  and  influenced  the  peace  movement  along  Ladd's  lines, 
and  that  the  project  for  the  establishment,  of  a  Congress  and  a 


PEACE  THROUGH  JUSTICE  49 

Court  of  Nations  was,  by  the  faithful  disciple,  Elihu  Burritt,  laid 
before  the  various  Peace  Conferences  of  Brussels  (1848),  Paris 
(1849),  Frankfort  (1850),  and  London  (1851). 

It  is  perhaps  not  too  much  to  say  that  had  not  the  Crimean  War 
broken  out  in  the  fifties,  the  experiment  of  a  conference  would  have 
been  tried  and  a  permanent  court  established  long  before  the  present 
generation. 

In  commenting  upon  Saint-Pierre's  scheme,  Cardinal  Fleury 
pleasantly  told  the  author  of  the  Essay  that  "  he  had  forgotten  one 
preliminary  article,  which  was  the  delegation  of  missionaries  to  dis- 
pose the  hearts  of  the  princes  of  Europe  to  submit  to  such  a  diet."  To 
which  Ladd  replied: 

The  peace  societies  must  furnish  these  missionaries,  and  send 
them  to  the  princes  in  monarchial  governments,  and  to  the 
people  in  mixed  and  republican  governments.  Let  public 
opinion  be  on  our  side,  and  missionaries  will  not  be  wanting. 

And  again: 

Before  either  the  President  or  the  Congress  of  these  United 
States  will  act  on  this  subject,  the  sovereign  people  must  act, 
and  before  they  will  act,  they  must  be  acted  on  by  the  friends 
of  peace;  and  the  subject  must  be  laid  before  the  people,  in  all 
parts  of  our  country,  as  much  as  it  has  been  in  Massachusetts, 
where  there  has,  probably,  been  as  much  said  and  done  on  the 
subject,  as  in  all  the  other  twenty-five  states  of  the  Union. 
When  the  whole  country  shall  understand  the  subject  as  well 
as  the  state  of  Massachusetts,  the  Congress  of  the  United  States 
will  be  as  favorable  to  a  Congress  of  Nations  as  the  General 
Court  of  Massachusetts ;  and  when  the  American  Government 
shall  take  up  the  subject  in  earnest,  it  will  begin  to  be  studied 
and  understood  by  the  enlightened  nations  of  Europe. 

Mr,  Ladd  cherished  no  illusions.  He  believed  that  his  plan  was 
practical,  and  believing,  likewise,  that  it  was  wise  and  just,  he  felt 
that  it  could  wait  years,  if  need  be,  for  its  realization,  and  that  re- 
peated failures  would  not  prevent  ultimate  triumph.  For  example, 
after  describing  various  attempts  to  form  a  Congress  of  Nations, 
especially  at  Panama,  he  says : 


50  PEACE  THROUGH  JUSTICE 

The  inference  to  be  deduced  from  this  abortive  attempt  [at 
Panama]  is,  that  the  governments  of  Christendom  are  willing 
to  send  delegates  to  any  such  Congress,  whenever  it  shall  be 
called  hy  a  respectable  state,  well  established  in  its  own  govern- 
ment, if  called  in  a  time  of  peace,  to  meet  at  a  proper  place. 
That  this  attempt  at  a  Congress  of  Nations,  or  even  a  dozen 
more,  should  prove  abortive  on  account  of  defects  in  their 
machinery  or  materials,  ought  not  to  discourage  us,  any  more 
than  the  dozen  incipient  attempts  at  a  steamboat,  which  proved 
abortive  for  similar  reasons,  should  have  discouraged  Fulton. 
Every  failure  throws  new  light  on  this  subject,  which  is  founded 
in  the  principles  of  truth  and  equity.  Some  monarch,  presi- 
dent, or  statesman — some  moral  Fulton,  as  great  in  ethics  as 
he  was  in  physics,  will  yet  arise,  and  complete  this  great  moral 
machine,  so  as  to  make  it  practically  useful,  but  improvable  by 
coming  generations.  Before  the  fame  of  such  a  man,  your 
Caesars,  Alexanders,  and  Napoleons  will  hide  their  diminished 
heads,  as  the  twinkling  stars  of  night  fade  away  before  the 
glory  of  the  full-orbed  king  of  day. 

When  the  Conference  called  by  the  "  respectable  state  ",  namely, 
Russia,  shall  have  become  permanent  and  assemble  periodically  to 
correct  the  inequalities  and  deficiencies  of  the  law  of  nations,  and 
when  a  court  of  nations  composed  of  judges  exists  as  a  permanent 
institution  before  which  nations  appear  as  suitors,  and  when  man- 
kind, accustomed  to  these  institutions,  recognize  their  importance, 
the  name  of  William  Ladd  will  undoubtedly  figure  among  the  bene- 
factors of  his  kind. 

James  Brown  Scott, 

Director  of  the  Division  of  International  Law, 

Washington,  D.  C, 
February  28,  1916. 


THE  ORGANIZATION  OF  INTERNA- 
TIONAL JUSTICE* 

By  James  Brown  Scott 

Some  people,  indeed  many  people,  will  consider  a  word  in  behalf 
of  the  peaceful  settlement  of  international  disputes  as  out  of  place 
during  war.  Yet  a  word  in  behalf  of  peaceable  settlement  during 
war  is  more  needed  than  in  times  of  peace,  and  a  failure  during  war 
to  express  belief  in  peaceful  settlement  is  a  confession  of  hopeless- 
ness and  defeat.  It  is  especially  during  war,  when  the  brutality  and 
uselessness  of  mere  physical  force  in  the  settlement  of  international 
disputes  is  most  evident,  that  the  partisans  of  peaceful  settlement 
should  not  only  raise  their  voices,  but  should  confer  together — in  a 
multitude  of  counselors  there  is  safety — in  order  to  devise  some 
scheme,  if  possible,  whereby  wars  which  may  not  be  prevented  may 
at  least  be  made  of  less  frequent  occurrence.  It  is  at  the  end  of 
war,  when  victor  and  ^actim  have  suffered  in  their  persons  and 
property,  that  they  are  most  likely  to  listen  to  the  still,  small  voice 
of  reason  unheard  or  unheeded  in  the  din  of  arms. 

Thus,  Grotius,  writing  in  1625  during  the  horrors  of  the  Thirty 
Years'  War,  confessed  his  faith  in  a  law  governing  the  conduct  of 
belligerents,  and  the  principles  which  he  gave  to  the  world  during  this 
war  made  their  way  after  it  into  the  practice  of  nations. 

And  thus,  after  the  horrors  of  the  wars  of  the  French  Revolution 
and  of  the  Empire,  victors  and  victim  formed  themselves  into  a 
league  of  nations  to  maintain  and  to  enforce  peace,  which  failed 
because  physical  force  cannot  be,  at  least  never  has  been,  safely 
entrusted  to  nations  to  be  used  against  their  fellow-members  of  the 
society  of  nations.  Tliat  is  to  say,  the  wars  of  tlie  Revolution  and  of 
the  Empire  had  created  a  desire  for  peace  and  its  maintenance,  and 
the   Holy   Alliance    (for  this  is  the  name  of  that  league  of  nations) 

•  Reprinted  from  the  Advocate  of  Peace,  Jnnuary,  1917,  vol.  79,  page  10. 
An  address,  as  revised  and  enlarged,  delivered  before;  the  Conference  of  Peace 
Workers,  New  York  City,  October  26,  IPlfi. 

51 


52  PEACE  THROUGH  JUSTICE 

is  worthy  of  consideration,  although  we  must  regard  the  work  of  its 
hands  as  faulty.* 

The  great  war  of  1914,  which  is  slowly  running  its  course,  will  one 
day  end,  and,  just  as  in  times  past  nations  have  met  in  conference  at 
the  conclusion  of  war,  so  they  will  again  meet  in  conference  at  the 
conclusion  of  the  war  of  1914.  Because  of  this,  it  seems  to  be  of 
more  than  passing  interest  for  the  friends  of  peace  to  confer  one  with 
another,  to  devise  a  plan  more  modest,  it  may  be,  than  many  would 
like,  but  perhaps,  for  that  very  reason,  more  possible  of  attainment; 
and  to  endeavor  to  secure  the  acceptance  of  this  plan  in  the  hope 
that  the  peace  which  is  soon  to  be  declared,  for  it  cannot  be  much 
longer  delayed,  will  be  less  readily  broken  in  the  future  than  in 
the  past. 

I  would  therefore  venture  to  suggest  concentration  upon  a  very 
few  points  such  as  the  following,  in  order  to  reach  clear,  definite, 
and  acceptable  conclusions  upon  them: 


To  urge  the  call  of  a  Third  Hague  Conference  to  which  every 
country  belonging  to  the  society  of  nations  shall  he  invited  and  in 
whose  proceedings  every  such  country  shall  participate. 

If  it  be  true,  as  the  Gospel  assures  us,  that  in  a  multitude  of  coun- 
selors there  is  safety  and,  as  we  may  hope,  wisdom,  it  necessarily  fol- 
lows that  the  larger  the  number  of  the  nations  met  in  conference  th^ 
greater  the  safety  and  the  greater  the  wisdom.  Indeed,  there  are 
those,  whose  opinions  are  entitled  to  respect,  who  see  in  the  meeting 
of  The  Hague  Conferences  a  greater  hope  and  a  greater  promise  than 
in  the  work  of  their  hands.  The  Hague  Conference  of  1899  was  com- 
posed of  the  representatives  of  twenty-six  States ;  its  successor  of 
1907  represented  officially  no  less  than  forty-four  sovereign,  free, 
and  independent  States,  which,  taken  together,  well  nigh  make  up 
the  society  of  civilized  nations. 

*  Phillips'    Confederation   of   Europe:   A    Study   of   the   European  Alliance, 
1813-1823,  as  an  Experiment  in  the  International  Organization  of  Peace  (191^). 


PEACE  THROUGH  JUSTICE  53 

II 

To  advocate  a  stated  meeting  of  The  Hague  Peace  Conference 
which,  thus  meeting  at  regular,  stated  periods,  will  become  a  recom- 
mending if  not  a  law-making  body. 

Without  a  radical  reorganization  of  the  society  of  nations,  diffi- 
cult, time-consuming,  and  perhaps  impossible  to  bring  about,  the 
Conventions  and  Declarations  adopted  by  the  Conference  are  to  be 
considered  not  as  international  statutes,  but  as  recommendations, 
which  must  be  submitted  to  the  nations  taking  part  in  the  Confer- 
ence for  their  careful  examination  and  approval.  By  the  ratification 
of  each  of  these,  and  by  the  deposit  of  the  ratifications  at  The  Hague 
in  accordance  with  the  terms  of  the  Conventions  and  Declarations 
recommended  by  the  Conference,  they  become  at  one  and  the  same 
time  national  and  international  laws:  national  laws  because  they 
have  been  ratified  by  the  law-making  body  of  each  of  the  countries, 
and  international  laws  because,  by  the  ratification  and  the  deposit 
of  the  ratifications  at  The  Hague,  they  have  assumed  the  form  and 
eifect  of  treaties,  that  is  to  say  statutes,  of  the  contracting  parties. 

Ill 

To  suggest  an  agreement  of  the  States  forming  the  society  of 
nations  concerning  the  call  and  procedure  of  the  Conference,  by 
which  that  institution  shall  become  not  only  internationalized,  but  in 
which  no  nation  shall  take  as  of  right  a  preponderating  part. 

The  American  delegation  to  the  Second  Hague  Peace  Conference 
was  thus  instructed  by  the  great  and  wise  statesman,  then  Secre- 
tary of  State: 

"  you  will  favor  the  adoj)tion  of  a  resolution  by  the  Conference 
providing  for  the  liolding  of  further  Conferences  within  fixed  periods 
and  arranging  the  machinery  by  which  such  Conferences  may  be 
called  and  the  terms  of  the  program  may  be  arranged,  without 
awaiting  any  new  and  specific  initiative  on  the  part  of  the  Powers 
or  any  of  tlioni."  * 

*  Forriffn  Rclntiong  of  the  Unitrd  Slates,  1907,  pt.  3,  p.  1130;  Instructions  to 
the  Amcr'tran  Dcler/afes  to  The  Ilafjue  Peace  Conferences  and  Their  Official 
Reports,  New  York,  Oxford  University  Press,  1916,  p.  72. 


54  PEACE  THROUGH  JUSTICE 

Mr.  Root  then  went  on  to  say: 

"  Encouragement  for  such  a  course  is  to  be  found  in  the  successful 
working  of  a  similar  arrangement  for  international  conferences  of 
the  American  republics.  The  Second  American  Conference,  held  in 
Mexico  in  1901-2,  adopted  a  resolution  providing  that  a  third  Con- 
ference should  meet  within  five  years,  and  committed  the  time  and 
place  and  the  program  and  necessary  details  to  the  Department  of 
State  and  representatives  of  the  American  States  in  Washington. 
Under  this  authority  the  Third  Conference  was  called  and  held  in 
Rio  de  Janeiro  in  the  summer  of  1906,  and  accomplished  results  of 
substantial  value.  That  Conference  adopted  the  following  resolution : 
"  '  The  governing  board  of  the  International  Bureau  of  American 
Republics  (composed  of  the  same  official  representatives  in  Washing- 
ton) is  authorized  to  designate  the  place  at  which  the  Fourth 
International  Conference  shall  meet,  which  meeting  shall  be  within 
the  next  five  years ;  to  provide  for  the  drafting  of  the  program  and 
regulations  and  to  take  into  consideration  all  other  necessary  de- 
tails ;  and  to  set  another  date  in  case  the  meeting  of  the  said  Con- 
ference cannot  take  place  within  the  prescribed  limit  of  time.' 

"  There  is  no  apparent  reason  to  doubt  that  a  similar  arrange- 
ment for  successive  general  international  conferences  of  all  the 
civilized  Powers  would  prove  as  practicable  and  as  useful  as  in  the 
case  of  the  twenty-one  American  States."  * 

The  American  delegation  complied  with  both  the  letter  and  spirit 
of  these  instructions,  brought  the  subject  of  a  stated  international 
conference  to  the  attention  of  the  delegates  of  the  forty-four 
nations  there  assembled,  and  secured  the  following  recommendation, 
a  first  step  toward  the  realization  of  a  larger  purpose: 

"  Finally,  the  Conference  recommends  to  the  Powers  the  assembly 
of  a  Third  Peace  Conference,  which  might  be  held  within  a  period 
corresponding  to  that  which  has  elapsed  since  the  preceding  Confer- 
ence, at  a  date  to  be  fixed  by  common  agreement  between  the  Powers, 
and  it  calls  their  attention  to  the  necessity  of  preparing  the  program 
of  this  Third  Conference  a  sufficient  time  in  advance  to  ensure  its 
deliberations  being  conducted  with  the  necessary  authority  and 
expedition. 

*  Foreign  Relations,  1907,  pt.   2,  pp.  1130-1;  Instructions  to   the  American 
Delegates,  pp.  72-3. 


PEACE  THROUGH  JUSTICE  55 

"  In  order  to  attain  this  object  the  Conference  considers  that  it 
would  be  very  desirable  that,  some  two  years  before  the  probable 
date  of  the  meeting,  a  preparatory  committee  should  be  charged  by 
the  Governments  with  the  task  of  collecting  the  various  proposals  to 
be  submitted  to  the  Conference,  of  ascertaining  what  subjects  are 
ripe  for  embodiment  in  an  international  regulation,  and  of  preparing 
a  program  which  the  Governments  should  decide  upon  in  sufficient 
time  to  enable  it  to  be  carefully  examined  by  the  countries  interested. 
This  committee  should  further  be  entrusted  with  the  task  of  propos- 
ing a  system  of  organization  and  procedure  for  the  Conference 
itself."  * 

IV 

To  request  the  appointment  of  a  committee,  to  meet  at  regular  in- 
tervals  between  the  Conferences,  charged  with  the  duty  of  procuring 
the  ratification  of  the  Conventions  and  Declarations  and  of  calling, 
attention  to  the  Conventions  and  Declarations  in  order  to  ensure 
their  observance. 

In  Mr.  Root's  instructions  to  the  American  delegation  to  the 
Second  Hague  Peace  Conference,  the  governing  board  of  the  Inter- 
national Bureau  of  American  Republics,  now  called  the  Pan  Amer- 
ican Union,  was  suggested  as  a  possible  method  of  organization  for 
the  nations  meeting  in  conference  at  The  Hague.  The  American 
delegation  did  not  lay  before  the  Conference  the  method  of  organiza- 
tion found  satisfactory  to  the  American  Republics  and  did  not  pro- 
pose that  it  be  adopted,  because,  as  the  result  of  private  discussion, 
it  appeared  unlikely  that  the  method  would  at  that  time  meet  with 
favor,  and  indeed  it  seemed  probable  that  its  proposal  would  preju- 
dice those  representatives  of  Governments  against  the  periodic 
meeting  of  conferences  who  thought  they  saw  in  co-operation  of  this 
kind  a  step  toward  federation. 

There  is,  however,  a  body  already  in  existence  at  The  Hague, 
similar  in  all  respects  to  the  governing  board  of  the  Pan  American 
Union  at  Washington,  which  can  be  used  for  like  purposes  if  the 
Governments  only  become  conscious  of  the  existence  of  this  body  and 
of  the  services  which  it  could  render  if  it  were  organized  and  invested 

•  Foreign  Erl/itinm,  1007,  pt.  2,  p.  1277;  The  Hague  Conventions  and  Declara- 
tiont,  New  York,  1915,  Oxford  University  Press,  pp.  29-30. 


56  PEACE  THROUGH  JUSTICE 

with  certain  powers.  The  body  at  Washington  forming  the  gov- 
erning board  is  composed  of  the  diplomatic  representatives  of  the 
American  Republics  accredited  to  the  United  States ;  the  body  at 
The  Hague  is  formed  of  the  diplomatic  representatives  of  the  Powers 
accredited  to  the  Netherlands.  If  they  were  invited  by  His  Excel- 
lency, the  Minister  of  Foreign  Affairs  of  the  Netherlands,  to  meet  in 
conference  in  the  Foreign  Office  at  The  Hague,  they  would  naturally 
meet  under  his  chairmanship,  just  as  the  American  diplomats 
meeting  in  Washington  find  themselves  under  the  chairmanship  of 
the  Secretary  of  State  of  the  United  States.  If  the  Dutch  Minister 
of  Foreign  Affairs  would  suggest  to  them  in  conference  that  they 
should  be  authorized  by  their  respective  governments  to  meet,  either 
in  the  Foreign  Office  or  the  Peace  Palace  at  The  Hague  at  regular 
intervals  between  the  Conferences,  to  be  determined  by  themselves  or 
their  countries,  they  would,  by  the  mere  fact  of  this  association, 
form  a  governing  board  in  which  all  nations  would  of  right  be 
represented  which  cared  to  maintain  diplomatic  agents  at  The 
Hague.  By  the  mere  fact  of  this  association  they  would  also,  even 
without  express  authority,  gradually  and  insensibly  assume  the  duty 
of  procuring  the  ratification  of  the  Conventions  and  Declarations  of 
the  Conference  and  of  calling  the  attention  of  the  Powers  rep- 
resented at  The  Hague  to  the  Conventions  and  Declarations, 
and  in  case  of  need  to  their  provisions,  in  order  that  they  might  be 
observed. 

It  is  only  necessary  for  the  nations  to  confess  in  public  what  they 
admit  In  private,  that  the  interest  of  all  is  superior  to  the  interest  of 
any  one,  and  that  the  general  interest  can  best  be  promoted  by  the 
action  of  all  met  together  for  that  purpose,  instead  of  limited  groups 
working  often  at  cross  purposes. 

The  first  step  toward  this  consummation  devoutly  to  be  wished  has 
already  been  taken.  Twenty-six  nations  at  the  First  and  forty-four 
nations  at  the  Second  Hague  Peace  Conference  recognized  in  the  pre- 
amble to  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes  "  the  solidarity  which  unites  the  members  of  the  society  of 
civUized  nations."  They  considered  it  expedient  to  extend  "  the  em- 
pire of  law  "  and  to  strengthen  "  the  appreciation  of  international 
justice  "  and  "  to  record  in  an  international  agreement  the  principles 
of  equity  and  right  on  which  are  based  the  security  of  States  and  the 


PEACE  THROUGH  JUSTICE  57 

welfare  of  peoples."  They  therefore  created  the  so-called  Permanent 
Court  of  Arbitration,  "  accessible  to  all  "  and  "  in  the  midst  of  the  in- 
dependent Powers,"  to  extend  the  empire  of  law  and  to  strengthen  the 
appreciation  of  international  justice,  upon  which  the  security  of 
States  and  the  welfare  of  peoples  are  based. 

They  thus  recognized  in  the  First  and  solemnly  confirmed  in  the 
Second  Conference  the  universal  need  of  principles  of  equity  and 
right  to  all  nations,  and,  recognizing  this  need,  they  created  an  or- 
ganization by  availing  themselves  of  the  diplomatic  agents  accredited 
to  The  Hague  to  give  effect  to  the  principles  of  law  and  equity  upon 
which  their  security  as  States  and  the  welfare  of  their  peoples  de- 
pended. Thus  the  twenty-six  nations  said  in  1899,  and  thus  the 
forty-four  nations  restated  it  in  1907,  in  the  Convention  for  the 
Pacific  Settlement  of  International  Disputes : 

"  A  Permanent  Administrative  Council,  composed  of  the  diplo- 
matic representatives  of  the  signatory  Powers  accredited  to  The 
Hague  and  of  the  Netherland  Minister  for  Foreign  Affairs,  who 
will  act  as  president,  shall  be  instituted  in  this  town  as  soon 
as  possible  after  the  ratification  of  the  present"  Act  by  at  least 
nine  Powers. 

"  This  Council  will  be  charged  with  the  establishment  and  organi- 
zation of  the  International  Bureau  [of  the  Permanent  Court  of  Ar- 
bitration], which  will  be  under  its  direction  and  control. 

"  It  will  notifj^  to  the  Powers  the  constitution  of  the  Court,  and 
will  provide  for  its  installation. 

"  It  will  settle  its  rules  of  procedure  and  all  other  necessary  regu- 
lations. 

"  It  will  decide  all  questions  of  administration  which  may  arise 
with  regard  to  the  operations  of  the  Court. 

"  It  will  have  entire  control  over  the  appointment,  suspension,  or 
dismissal  of  the  officials  and  employers  of  the  Bureau. 

"  It  will  fix  the  payments  and  salaries,  and  control  the  general 
expenditure. 

"  At  meetings  duly  summoned  the  presence  of  five  members  is  suf- 
ficient to  render  valid  the  discussions  of  the  Council.  The  decisions 
are  taken  by  a  majority  of  votes. 

"  The  Council  communicates  to  the  signatory  Powers  without 
delay  the  regulations  adopted  by  it.     It  furnishes  them  with  an 


58  PEACE  THROUGH  JUSTICE 

annual  report  on  the  labors  of  the  Court,  the  working  of  the  admin- 
istration, and  the  expenses."  * 

What  has  been  done  for  one  may  assuredly  be  done  for  another 
purpose,  and,  without  changing  the  body,  the  nations  merely  need 
to  enlarge  its  scope  by  having  it  perform  the  same  services  for  each 
of  the  general  interests  affecting  "  the  solidarity  which  unites  the 
members  of  the  society  of  civilized  nations."  If  a  governing  board 
may  act  at  Washington  without  affecting  the  sovereignty,  freedom, 
and  independence  of  twenty-one  States,  a  governing  board  can  like- 
wise act  at  The  Hague  in  the  interest  of  and  without  affecting  the 
sovereignty,  freedom,  and  independence  of  forty-four  States.  There 
is  only  one  thing  needed — the  desire  so  to  do. 

In  the  belief  that  the  Powers  may  prefer  to  proceed  more 
cautiously,  I  have  presumed  to  suggest  on  this  point  that  the  Con- 
ference might,  upon  its  adjournment,  appoint  a  committee  charged 
with  the  duty  of  procuring  the  ratification  of  the  Conventions 
and  Declarations,  and  of  calling  attention  to  the  Conventions  and 
Declarations  in  order  to  secure  their  observance ;  and  in  the  appoint- 
ment of  the  committee  the  Conference  might  specify  both  the  nature 
and  extent  of  the  authority  with  which  it  would  be  clothed.  This 
would  not  be  an  attempt  on  the  part  of  a  Conference  to  bind 
its  successor;  it  would  be  a  recommendation  of  the  Conference 
to  the  Powers  represented  in  it,  the  binding  force  and  effect  of 
which  result  solely  from  the  acceptance  and  ratification  of  the 
agreement,  as  is  the  case  with  The  Hague  Conventions  or 
Declarations. 

The  appointment  of  such  a  committee  for  limited  and  specific 
purposes  is  highly  desirable,  if  other  and  better  methods  are  not 
devised  and  preferred,  and  it  is  not  without  a  precedent  in  its  be- 
half and  favor.  Under  the  9th  of  the  Articles  of  Confederation  the 
Congress  appointed  "  a  committee  of  the  States,"  composed  of  one 
delegate  from  each  of  the  thirteen  States,  to  sit  during  the  recess  of 
the  Congress,  then  a  diplomatic,  not  a  parliamentary  body,  to  look 
after  the  interests  of  the  States  as  a  whole  and  to  exercise  some,  but 
not  all,  of  the  powers  delegated  to  the  Congress  by  the  States,  which 
in  the  2d  of  the  Articles  had  declared  themselves  to  be  sovereign, 
free,  and  independent.  It  is  important  to  note  that  in  the  Articles 
*  Foreign  Relations,  1899,  p.  526 ;  Hague  Conventions,  pp.  62.-3. 


PEACE  THROUGH  JUSTICE  59 

of  Confederation  we  are  dealing  with  Sovereign  States  and  to  bear 
in  mind  that  Sovereignty  is  not  lessened  bj'  its  mere  exercise,  because 
after  as  before  the  Articles  the  States  were  sovereign.  What  thirteen 
sovereign,  free,  and  independent  States  have  done,  forty-four  sov- 
ereign, free,  and  independent  States  may  do,  if  they  only  can  be  m.ade 
to  feel  and  to  see  the  consequences  of  this  simple  step  in  international 
development  and  supervision. 

If  the  Conference  in  its  wisdom  should  accept  Mr.  Root's  pro- 
posal, it  could  utilize  for  this  purpose  the  governing  board  already 
in  existence,  namely,  the  administrative  council  of  the  so-called  Per- 
manent Court  of  Arbitration  at  The  Hague,  or,  if  it  should  prefer 
a  smaller  committee,  it  could  designate  the  members  subject  to  the 
approval  of  the  Powers  represented  in  the  Conference;  or  it  might 
make  even  a  more  modest,  and  indeed  the  most  modest,  recommen- 
dation to  accomplish  the  same  result,  namely,  the  suggestion  that 
the  diplomatic  agents  of  the  Powers  accredited  at  The  Hague  should 
form  from  their  number  an  executive  committee,  charged  with  the 
duties  of  an  international  committee  between  the  Conferences,  to  re- 
port to  the  diplomatic  corps  at  regular  intervals,  so  that  all  coun- 
tries believing  and  taking  part  in  The  Hague  Conferences  would  be 
prompth'  informed  of  the  action  taken  by  their  duly  accredited 
representatives. 

Let  me  quote  in  this  connection  the  following  paragraph  from  a 
work  on  The  Hague  Conferences,  in  which  I  ventured  to  point  out 
the  advantage  of  a  committee  between  the  Conferences,  the  nature 
of  the  committee,  and  the  services  which  it  could  render  to  the 
society  of  nations : 

"  It  may  well  be  that  the  preparatory  committee  mentioned  by  the 
recommendation  for  a  Third  Conference,  *  charged  by  the  Govern- 
ments with  the  task  of  collecting  the  various  proposals  to  be  sub- 
mitted to  the  Conference,  of  ascertaining  what  subjects  are  ripe  for 
embodiment  in  an  international  regulation,'  will  develop  into  a 
standing  committee  entrusted  with  international  interests  between 
the  various  Conferences.  Especially  would  this  be  so  if  the 
committee  were  appointed  by  the  Conference,  instead  of  being 
selected  by  agreement  of  tlic  Powers  some  time  before  tlic  calling 
of  the  future  Conference.  It  would  not  be  an  executive;  it 
would  not  be   a  Government ;   it  would,  however,  as   a  committee, 


60  PEACE  THROUGH  JUSTICE 

represent    international   interests    during   the   periods   between   the 
Conferences."  * 


To  recommend  an  understanding  upon  certain  fundamental  prin- 
ciples of  international  law,  as  set  forth  in  the  Declaration  of  the 
Rights  and  Duties  of  Nations  adopted  hy  the  American  Institute  of 
International  Law  on  January  6,  1916,  which  are  themselves  based 
upon  decisions  of  English  courts  and  of  the  Supreme  Court  of  the 
United  States. 

*'  1.  Every  nation  has  the  right  to  exist  and  to  protect  and  to 
conserve  its  existence;  but  this  right  neither  implies  the  right  nor 
justifies  the  act  of  the  State  to  protect  itself  or  to  conserve  its  exist- 
ence by  the  commission  of  unlawful  acts  against  innocent  and  un- 
offending States.  (Chinese  Exclusion  Case,  130  U.  S.,  581,  606; 
Regina  vs.  Dudley,  15  Cox's  Criminal  Cases,  624,  14  Queen's 
Bench  Division,  273.) 

"  2.  Every  nation  has  the  right  to  independence  in  the  sense  that, 
it  has  a  right  to  the  pursuit  of  happiness  and  is  free  to  develop  itself 
without  interference  or  control  from  other  States,  provided  that  in 
so  doing  it  does  not  interfere  with  or  violate  the  rights  of  other 
States. 

"  3.  Every  nation  is  in  law  and  before  law  the  equal  of  every  other 
nation  belonging  to  the  society  of  nations,  and  all  nations  have  the 
right  to  claim  and,  according  to  the  Declaration  of  Independence  of 
the  United  States,  '  to  assume,  among  the  powers  of  the  earth,  the 
separate  and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them.'  (The  Louis,  2  Dodson  210,  243-4; 
The  Antelope,  10  Wheaton,  66,  122.) 

"  4.  Every  nation  has  the  right  to  territory  within  defined  boun- 
daries and  to  exercise  exclusive  jurisdiction  over  its  territory,  and  all 
persons,  whether  native  or  foreign,  found  therein.  (The  Exchange, 
7  Cranch,  116,  136-7.) 

"  5.  Every  nation  entitled  to  a  right  by  the  law  of  nations  is 
entitled  to  have  that  right  respected  and  protected  by  all  other 
nations,  for  right  and  duty  are  correlative,  and  the  right  of  one  is 

♦  The  Eagm  Peace  Conferences  of  1899  and  1907,  vol.  1,  p.  751. 


PEACE  THROUGH  JUSTICE  61 

the  duty  of  all  to  observe.     (United  States  vs.  Arjona,  120  U.  S., 
479,  487.) 

"  6.  International  law  is  at  one  and  the  same  time  both  national 
and  international :  national  in  the  sense  that  it  is  the  law  of  the  land 
and  applicable  as  such  to  the  decision  of  all  questions  involving  its 
principles ;  international  in  the  sense  that  it  is  the  law  of  the  society 
of  nations,  and  applicable  as  such  to  all  questions  between  and  among 
the  members  of  the  society  of  nations  invohdng  its  principles." 
(Buvot  vs.  Barbuit,  Cases  Tempore  Talbot,  281;  Triquet  vs. 
Bath,  3  Burrow,  1478;  Heathfield  vs.  Chilton,  4  Burrow,  2015; 
The  Paquete  Habana,  175  U.  S.,  677,  700.)* 

VI 

To  propose  the  creation  of  an  international  council  of  concil- 
iation, to  consider,  to  discuss,  and  to  report  upon  such  questions  of  a 
non- justiciable  character  as  may  he  submitted  to  such  council  by 
an  agreement  of  the  powers  for  this  purpose. 

The  prototype  of  this  council  is  the  International  Commission  of 
Inquiry  proposed  by  the  First  Hague  Conference,  and  contained  in 
its  Convention  for  the  Pacific  Settlement  of  International  Disputes. 
Its  form  may  well  be  that  adopted  by  Mr.  Bryan  in  the  various 
treaties  for  the  advancement  of  peace  which,  as  Secretary  of  State, 
he  concluded  on  behalf  of  the  United  States  with  many  foreign 
nations.  In  these  it  is  provided  that  all  disputes  which  diplomacy 
has  failed  to  settle,  or  which  have  not  been  adjusted  by  existing 
treaties  of  arbitration,  shall  be  laid  before  a  permanent  commission 
of  some  five  members,  which  shall  have  a  year  within  which  to  report 
its  conclusions  and  during  which  time  the  contracting  parties  agree 
not  to  resort  to  arms. 

The  Powers  might  agree  to  establish  an  international  commission 
as  it  is  proposed  to  establish  an  international  court,  to  be  composed 
of  a  limited  number  of  members  appointed  for  a  period  of  3^ears,  to 
which  perliaps  a  representative  of  each  of  the  countries  In  contro- 
versy might  be  added,  in  order  that  the  views  of  the  respective 
Governments  should  be  made  known  and  be  carefully  considered  by 

•  For  preamble  and  official  commentary  on  this  declaration,  see  Appendix, 
page  85. 


62 


PEACE  THROUGH  JUSTICE 


those  members  of  the  commission  strangers  to  the  dispute.  In  this 
case  there  would  be  a  permanent  nucleus,  and  the  powers  at  odds 
would  not  be  obliged  to  agree  upon  the  members  of  the  commission, 
but  only  to  appoint,  each  for  itself,  a  national  member.  In  this  way 
the  dispute  could  be  submitted  to  the  commission  before  it  had  be- 
come acute  and  had  embittered  the  relations  of  the  countries  in 
question. 

If  an  international  commission  of  the  kind  specified  should  be  con- 
sidered too  great  a  step  to  be  taken  at  once,  the  countries  might  con- 
clude agreements  modeled  upon  those  of  Mr.  Bryan,  and  as  the 
result  of  experience  take  such  action  in  the  future  as  should  seem 
possible  and  expedient. 

The  conclusions  of  the  commission  are  in  the  nature  of  a  recom- 
mendation to  the  Powers  in  controversy,  which  they  are  free  either 
to  accept  or  to  reject.  They  are  not  in  themselves  an  adjustment 
as  in  the  case  of  diplomacy,  an  award  as  in  the  case  of  arbitration,  or 
a  judgment  as  in  the  case  of  a  court  of  justice.  It  is  the  hope  of  the 
partisans  of  this  institution  that  its  conclusions  will  nevertheless 
form  the  basis  of  settlement  and  that,  under  the  pressure  of  enlight- 
ened public  opinion,  the  Powers  may  be  minded  to  settle  their  differ- 
ences more  or  less  in  accord  with  the  recommendations  of  the 
commission. 


vn 

To  commend  the  employm£nt  of  good  offices,  mediation,  and 
friendly  composition  for  th^  settlement  of  disputes  of  a  non- 
justiciable nature. 

Good  offices  and  mediation  were  raised  to  the  dignity  of  an  inter- 
national institution  by  the  First  Hague  Peace  Conference,  and  in  its 
Peaceful  Settlement  Convention  the  signatory  or  contracting  Powers 
agreed  to  have  "  recourse,  as  far  as  circumstances  allow,  to  the  good 
offices  or  mediation  to  the  countries  at  variance,  and  it  is  specifically 
stated  in  the  Convention,  in  order  to  remove  doubt  or  uncertainty, 
that  the  offer  of  good  offices  or  of  mediation  is  not  to  be  considered 
as  an  unfriendly  act — and  the  Powers  might  also  have  added  that 
it  is  not  an  act  of  Intervention,  which  nations  resent. 

The  offer  of  good  offices  is  a  word  of  advice,  it  is  not  an  award  or 


PEACE  THROUGH  JUSTICE  63 

A  decision.  Mediation  goes  a  step  further,  as  the  nation  proposing 
it  offers  to  co-operate  with  the  parties  in  effecting  a  settlement.  The 
agreement  to  ask  and  to  offer  good  offices  and  mediation  is  qualified 
bj^  the  expression  "  as  far  as  circumstances  will  allow."  It  is  there- 
fore higlilA'  desirable  that  frequent  resort  be  made  to  good  offices  and 
mediation,  in  order  that  the  nations  may  learn  from  experience  that 
circumstances  allow  the  offer  and  the  acceptance  of  good  offices  and 
mediation  without  danger  to  either  and  with  satisfaction  to  both. 

Friendh"  composition  is  more  than  good  offices  or  mediation,  and 
may  be  less  than  arbitration.  It  is  not  limited  to  advice,  and  it  is 
not  restricted  to  co-operation ;  it  is  the  settlement  of  a  difference  not 
necessarily  upon  the  basis  of  law,  but  rather  according  to  the  judg- 
ment of  a  high-minded  and  conscientious  person  possessing  in  ad- 
vance the  confidence  of  both  parties  to  the  dispute  and  deserving  it 
by  his  adjustment  of  the  dispute.  It  may  be  a  settlement  in  the 
nature  of  a  compromise;  it  may  be  an  adjustment  according  to  the 
principles  of  fair  dealing;  it  may  be  a  bargain  according  to  the 
principles  of  give  and  take.  This  remedy  has  been  found  useful  in 
the  past,  and  it  can  be  of  service  in  the  future,  where  it  is  more  to 
the  advantage  of  nations  to  have  a  dispute  adjusted  than  to  have 
it  determined  in  any  particular  way. 

VIII 

To  approve  the  principle  of  arbitration  in  the  settlement  of  dis- 
putes of  a  non- justiciable  nature;  also  of  disputes  of  a  justiciable 
nature  which  should  be  decided  by  a  court  of  justice,  but  which  have, 
through  delay  or  mismanagement,  assumed  such  political  importance 
that  the  nations  prefer  to  submit  them  to  arbiters  of  their  own  choice 
rather  than  to  judges  of  a  permanent  judicial  tribunal. 

The  arbiter  is  not,  as  is  the  friendly  composer,  a  free  agent  in  the 
sense  that  he  may  render  an  award  in  accordance  with  his 
individual  sense  of  right  or  wrong,  for,  as  the  First  Hague  Peace 
Conference  said  in  its  Pacific  Settlement  Convention,  "  international 
arbitration  has  for  its  object  the  settlement  of  differences  between 
States  by  judges  of  their  own  choice,  and  on  the  basis  of  respect 
for  law."     Even  if  law  is  not  absolutely  binding  it  cannot  be  arbi- 


64 


PEACE  THROUGH  JUSTICE 


trarily  rejected;  it  must  be  respected,  and  the  sentence,  if  it  be  not 
just  in  the  sense  that  it  is  based  upon  law,  it  must  be  equitable 
in  the  sense  that  it  is  based  upon  the  spirit  of  the  law  as  distinct  from 
the  letter. 

Hundreds  of  disputes  have  been  settled  since  the  Jay  Treaty  of 
1794  between  Great  Britain  and  the  United  States,  which  brought 
again  this  method  into  repute  and  into  the  practice  of  nations.  As  a 
result  of  this  large  experience,  extending  over  a  century,  nations  find 
it  difficult  to  refuse  arbitration  when  it  has  been  proposed.  But  if  it 
is  a  sure,  it  is  a  slow-footed,  remedy,  as  in  the  absence  of  a  treaty  of 
arbitration  one  must  be  concluded,  and,  in  the  practice  of  the  United 
States,  there  must  be  a  special  agreement  submitted  to  and  advised 
and  consented  to  by  the  Senate,  stating  the  exact  nature  and  scope 
of  the  arbitration.  The  arbiters  forming  the  temporary  tribunal 
must  likewise  be  chosen  by  the  parties,  and  unfortunately  at  a  time 
when  they  are  least  inclined  to  do  so.  It  is  a  great  and  a  beneficent 
remedy,  but  the  difficulty  of  setting  it  in  motion  and  the  doubt  that 
the  award  may  be  controlled  by  law  suggest  the  creation  of  a  per- 
manent tribunal  which  does  not  need  to  be  composed  for  the  settle- 
ment of  the  case  and  in  which  law  shall,  as  in  a  court  of  justice, 
control  the  decision. 

There  are  many  cases  turning  on  a  point  of  law  and  which  could 
be  got  out  of  the  way,  to  the  great  benefit  of  the  cause  of  inter- 
national peace,  if  they  were  submitted,  when  and  as  they  arose,  to  a 
judicial  tribunal.  Unfortunately,  such  a  tribunal  has  not  existed  in 
times  past,  and  many  a  dispute,  by  delay  or  mismanagement,  has 
assumed  a  political  importance  which  it  did  not  possess  at  the  begin- 
ning. Nations  may  have  taken  a  position  upon  it,  and  in  con- 
sequence be  unwilling  to  change  their  attitude.  Again,  there  are 
matters,  largely  if  not  wholly  political,  or  in  which  the  political 
element  dominates,  which  nations  would  prefer  to  submit  to  a  limited 
commission  or  tribunal  composed  of  persons  in  whose  ability  and 
character  they  have  confidence  and  whose  training  seems  to  fit  them 
for  the  disposition  of  the  controversy  in  hand. 

The  reasons  for  a  resort  to  arbitration,  even  although  an  Inter- 
national Court  of  Justice  be  established  and  ready  to  receive  and  to 
decide  the  case,  have  never  been  better  put  than  by  Mr.  Leon 
Bourgeois  in  advocating  the  retention  of  the  so-called  Permanent 


PEACE  THROUGH  JUSTICE  65 

Court  of  Arbitration  and  of  creating  alongside  of  it  a  permanent 
court  composed  of  professional  judges,  which  was  proposed  at  the 
Second  Hague  Conference  of  1907  and  adopted  in  principle: 

"  If  there  are  at  present  no  judges  at  The  Hague,  it  is  because 
the  Conference  of  1899,  taking  into  consideration  the  whole  field  open 
to  arbitration,  intended  to  leave  to  the  parties  the  duty  of  choosing 
their  judges,  which  choice  is  essential  in  all  cases  of  peculiar  gravity. 
We  should  not  like  to  see  the  court  created  in  1899  lose  its  essentially 
arbitral  character,  and  we  intend  to  preserve  this  freedom  in  the 
choice  of  judges  in  all  cases  where  no  other  rule  is  provided. 

In  controversies  of  a  political  nature  especially,  we  think  that 
this  will  always  be  the  real  rule  of  arbitration,  and  that  no  nation, 
large  or  small,  will  consent  to  go  before  a  court  of  arbitration  unless 
it  takes  an  active  part  in  the  appointment  of  the  members  compos- 
ing it. 

"  But  is  the  case  the  same  in  questions  of  a  purely  legal  nature? 
Can  the  same  uneasiness  and  distrust  appear  here?  ,  .  .  And  does 
not  every  one  realize  that  a  real  court  composed  of  real  jurists  may 
be  considered  as  the  most  competent  organ  for  deciding  controversies 
of  this  character  and  for  rendering  decisions  on  pure  questions 
of  law? 

"  In  our  opinion,  therefore,  either  the  old  system  of  1899  or  the 
new  system  of  a  truly  permanent  court  may  be  preferred,  according 
to  the  nature  of  the  case.  At  all  events  there  is  no  intention  what- 
ever of  making  the  new  system  compulsory.  The  choice  between  the 
tribunal  of  1899  and  the  court  of  1907  will  be  optional,  and  the  ex- 
perience will  show  the  advantages  or  disadvantages  of  the  two 
systems."  * 

*  The  Reports    to   the  Hague  Conferences,   Oxford,   1916,   Clarendon   Press, 
p.  233. 


66  PEACE  THROUGH  JUSTICE 

IX 

To  insist  upon  the  negotiation  of  a  convention  creating  a  judicial 
union  of  the  nations  along  the  lines  of  the  Universal  Postal  Union  of 
1908,  to  which  all  civilized  nations  and  self-governing  dominions  are 
parties,  pledging  the  good  faith  of  the  contracting  parties  to  submit 
their  justiciable  disputes,  that  is  to  say,  their  differences  involving 
law  or  equity,  to  a  permanent  court  of  this  union,  whose  decisions 
will  bind  not  only  the  litigating  nations,  but  also  all  parties  to  its 
creation. 

The  prototype  of  this  international  court  of  justice  and  its  pro- 
cedure is  the  Supreme  Court  of  the  United  States  and  its  procedure, 
which  may  be  thus  briefly  outlined: 

1.  The  Supreme  Court  determines  for  itself  the  question  of  juris- 
diction, receiving  the  case  if  it  finds  that  States  are  parties  and  if, 
as  presented,  it  involves  questions  of  law  or  of  equity.  (Rhode 
Island  vs.  Massachusetts,  12  Peters,  655,  decided  by  Mr.  Justice 
Baldwin. 

2.  If  States  are  parties  to  the  suit,  and  if  it  is  justiciable,  that  is, 
if  it  involves  law  or  equity,  the  plaintiff  State  is,  upon  its  request, 
entitled  to  have  a  subpoena  against  the  defendant  State  issued  by  the 
Supreme  Court.  (New  Jersey  vs.  New  York,  3  Peters,  461,  decided 
by  Mr.  Chief  Justice  Marshall ;  New  Jersey  vs.  New  York,  5  Peters, 
284,  decided  by  Mr.  Chief  Justice  Marshall.) 

3.  The  plaintiff  State  has  the  right  to  proceed  ex  parte  if  the 
defendant  State  does  not  appear  and  litigate  the  case.  (New  Jersey 
vs.  New  York,  5  Peters,  284,  decided  by  Mr.  Chief  Justice  Marshall ; 
Massachusetts  vs.  Rhode  Island,  12  Peters,  755,  decided  by  Mr. 
Justice  Thompson.) 

4.  The  plaintiff  State  has  the  right,  in  the  absence  of  the  de- 
fendant duly  summoned  and  against  which  a  subpoena  has  been 
issued,  to  proceed  to  judgment  against  the  defendant  State  in  a  suit 
which  the  Supreme  Court  has  held  to  be  between  States  and  to  be  of  a 
justiciable  nature.  (New  Jersey  vs.  New  York,  5  Peters,  284,  de- 
cided by  Mr.  Chief  Justice  Marshall.) 

5.  In  the  exercise  of  its  jurisdiction  the  Supreme  Court  does  not 
compel  the  presence  of  the  defendant  State  (Massachustts  vs.  Rhode 
Island,  12  Peters,  755,  decided  by  Mr.  Justice  Thompson),  nor  does 


PEACE  THROUGH  JUSTICE  67 

it  execute  by  force  its  judgment  against  a  defendant  State  (Ken- 
tucky vs.  Dennison,  24*  Howard,  66,  decided  by  Mr.  Chief  Justice 
Taney). 

The  reasonableness  of  the  judgment  and  the  advantage  of  judicial 
settlement  have  thus  created  a  public  opinion  as  the  sanction  of  the 
Supreme  Court  in  suits  between  States. 

6.  In  the  exercise  of  its  jurisdiction  the  Supreme  Court  has 
moulded  a  system  based  upon  equity  procedure  between  individuals 
in  such  a  way  as  to  simplify  it,  giving  to  the  defendant  State 
opportunity  to  present  its  defense  as  well  as  to  the  plaintiff 
State  to  present  its  case  without  delaying  or  blocking  the 
course  of  justice  by  technical  objections.  (Rhode  Island  vs. 
Massachusetts,  1-i  Peters,  210,  decided  b}'  Mr.  Chief  Justice 
Taney.) 

In  the  Universal  Postal  Union,  wliich  has  been  mentioned  as  the 
prototype  of  a  judicial  union,  all  the  civilized  nations  of  the  world 
and  self-governing  dominions  have  bound  themselves  to  submit  to 
arbitration  their  disputes  concerning  the  interpretation  of  the  Con- 
vention as  well  as  their  disputes  arising  under  it,  by  a  commission  of 
three  arbiters,  of  whom  one  is  to  be  appointed  by  each  of  the  dis- 
putants and  the  third  in  case  of  need  by  the  arbiters  themselves. 
What  the  nations  have  agreed  to  do  after  thoy  can  do  before  the 
outbreak  of  a  dispute,  for  the  appointment  in  this  case  is  a  matter 
of  time,  not  of  principle.  Should  they  create  a  judicial  union,  and 
at  the  time  of  its  formation  install  a  permanent  tribunal  composed  of 
a  limited  number  of  judges,  the  society  of  nations  would  find  itself 
possessed  of  a  court  of  justice  composed  in  advance  of  the  disjDutes, 
ready  to  assume  jurisdiction  of  them  whenever  they  should  arise, 
without  the  necessity  of  creating  the  court,  appointing  its  members, 
agreeing  upon  the  question  to  be  litigated,  and  in  many,  if  not  in 
most,  instances  upon  the  procedure  to  be  followed.  As  in  the  case 
of  the  Supreme  Court,  which  has  been  suggested  as  the  prototype 
of  an  international  tribunal,  there  would  be  no  need  of  a  treaty 
of  arbitration  or  of  a  special  agreement  in  addition  to  the  Conven- 
tion creating  the  court  and  authorizing  it  to  receive  and  decide 
justiciable  disputes  submitted  by  the  contracting  parties.  The  plain- 
tiff State  could  set  the  court  in  motion  upon  its  own  initiative,  with- 
out calling  to  its  aid  the  members  of  the  Union,  just  as  each  member 


68  PEACE  THROUGH  JUSTICE 

of  the  American  Union  can  file  its  bill  in  the  Supreme  Court  without 
the  aid,  and  indeed  without  the  knowledge,  of  the  other  States  of 
the  American  judicial  Union. 

I  would  especially  dwell  upon  the  fact  that  sovereignty  is  not 
necessarily  involved  in  the  formation  of  a  judicial  union,  in  the  ap- 
pointment of  the  judges,  or  in  the  operation  of  the  judicial  tribunal, 
because  in  the  Universal  Postal  Union  self-governing  dominions  are 
parties,  which  could  not  be  the  case  if  sovereignty  were  requisite  as 
they  are  not,  although  they  may  one  day  be  sovereign.  The  expe- 
rience of  the  Supreme  Court  of  the  United  States  shows  that  justice 
and  its  administration  are  the  bulwarks  of  the  States  against  ag- 
gression from  without  as  well  as  from  within. 

I  have  not  mentioned  the  question  of  physical  force,  either  to  hale 
a  nation  into  court  or  to  execute  against  it  the  judgment  of  the  in- 
ternational tribunal.  The  sheriff  did  not  antedate  the  judge,  nor 
did  he  come  into  being  at  the  same  time.  He  is  a  later  creation,  if 
not  an  afterthought.  He  is  necessary  in  disputes  between  individ- 
uals ;  he  is  not  necessary — at  least,  he  is  not  a  part  of  the  machinery 
of  the  Supreme  Court  in  the  trial  of  disputes  between  States  of  the 
American  judicial  union  and  in  the  execution  of  its  judgments 
against  States.  It  may  be  that  an  international  sheriff  may  prove 
to  be  necessary,  but  nations  shy  at  physical  force,  especially  if  they 
understand  that  it  is  to  be  used  against  them.  The  presence  of  the 
sheriff  armed  with  force,  that  is  to  say,  of  an  international  police, 
would  make  an  agreement  upon  an  international  court  more  difficult, 
and  if  an  international  sheriff  should  prove  to  be  unnecessary  his 
requirement  as  a  prerequisite  to  the  court  would  delay  the  constitu- 
tion of  this  much-needed  institution. 

If  the  sheriff  is  needed,  or  if  some  form  of  compulsion  is  found 
advisable  in  order  to  procure  the  presence  of  the  defendant  State 
before  the  international  tribunal,  and  to  execute  the  judgment 
thereof  when  rendered,  it  is,  as  it  seems  to  me,  the  part  of  wisdom 
to  allow  the  experience  of  nations  to  determine  when  and  how  the 
force  shall  be  created  and  under  what  circumstances  and  conditions 
it  is  to  be  applied.  If  we  unduly  complicate  the  problem  by  insisting 
that  the  international  court  shall  be,  in  its  beginning,  more  perfect 
than  is  the  Supreme  Court  of  the  United  States  after  a  century  and 
more  of  successful  operation,  we  run  the  risk  of  sacrificing  the  bone 


PEACE  THROUGH  JUSTICE  69 

to  the  shadow,  to  use  the  very  familiar  illustration  as  old  as  -^sop, 
whose  day  as  a  prophet  is  not  yet  run. 

The  advocates  of  an  International  Court  have  for  the  most  part 
laid  undue  and  unbecoming  stress,  as  it  seems  to  me,  upon  the  ap- 
pearance before  the  court  of  the  defendant  State  and  upon  the 
execution  of  the  judgment  of  the  court,  which  they  would  have  us 
think  can  only  be  reached  and  rendered  in  the  presence  and  with  the 
co-operation  of  the  defendant. 

Perhaps  the  clearest  and  fullest  statement  of  this  view  which,  if 
not  the  earliest  in  point  of  time,  is  assuredly  the  most  altruistic  in 
conception,  the  most  balanced  in  detail,  and  the  most  thorough  in 
operation,  and  as  superior  to  its  meagre  predecessors  and  to  its  nu- 
merous progeny  as  its  author  was  and  is  to  the  generality  of  man- 
kind, is  to  be  found  in  Penn's  Essay  toward  the  Present  and  Future 
Peace  of  Europe.  In  this  project,  published  as  long  ago  as  1693, 
the  good  Quaker  advocated  a  diet  or  parliament  to  meet  annually,  or 
every  second  or  third  j'ear,  in  which  the  sovereign  princes  of  Europe 
were  to  be  represented  in  proportion  to  their  propert}^,  and  "  before 
which  sovereign  assembly  should  be  brought  all  differences  depending 
between  one  sovereign  and  another,  that  cannot  be  made  up  by  pri- 
vate embassies,  before  the  sessions  begin."  The  assembly  is  thus,  as 
Penn  properly  says,  sovereign,  and  it  was  to  decide  as  a  sovereign 
differences  between  and  among  the  sovereign  princes  of  Europe  who, 
in  the  language  of  the  present  day,  would  be  called  the  contracting 
parties.  As  sovereign  the  assembly  was  to  hale  before  it  the  parties 
in  controversy  and  to  adjudge  the  dispute;  if  they  refused  to  submit 
the  difference,  or  delayed  to  do  so  beyond  the  day  fixed  by  the  as- 
sembly, the  submission  was  to  be  enforced  by  the  mailed  fist ;  or  if 
they  submitted  the  difference,  but  failed  to  comply  with  the  judg- 
ment of  the  assembly,  the  signatory  sovereigns  were  to  secure  com- 
pliance by  physical  force. 

If,  notwitlistanding  the  agreement  to  abide  by  the  judgment  of  the 
assembly,  tlie  disputants  preferred  to  "  seek  their  remedy  by  arms," 
the  other  sovereign  princes  making  common  cause  against  the  peace 
breakers,  were  to  bring  them  to  reason  by  physical  force. 
But  to  quote  Penn,  instead  of  paraphrasing  his  language: 
"  If  any  of  the  Sovereignties  that  constitute  these  imperial  States, 
shall  refuse  to  submit  their  claim  or  pretensions  to  them,  or  to  abide 


70  PEACE  THROUGH  JUSTICE 

and  perform  the  judgment  thereof,  and  seek  their  remedy  by  arms,  or 
delay  tlieir  compliance  beyond  the  time  prefixed  in  their  resolutions, 
all  the  other  Sovereignties,  united  as  one  strength,  shall  compel  the 
submission  and  performance  of  the  sentence,  with  damages  to  the 
suffering  party,  and  charges  to  the  Sovereignties  that  obligated  their 
submission." 

Two  centuries  and  more  have  passed  since  the  publication  of  Penn's 
Essay,  and  the  plan  is  still  a  project.  In  the  meantime  the  founders 
of  the  American  Republic  have  approached  the  problem  of  Inter- 
national Justice  and  its  administration  from  the  standpoint  of  the 
possible,  and  have  realized  in  practice  the  ideal  of  the  high-minded 
and  generous  theorist.  The  statesmen  of  the  American  Revolution 
knew  that  their  States  would  not  agree  to  the  use  of  physical  force 
against  themselves,  even  if  they  should  propose  it.  They  had  seen 
negotiations  fail,  and  between  the  breakdown  of  diplomacy  on  the 
one  hand  and  the  resort  to  arms  on  the  other,  these  same  statesmen 
inserted  the  resort  to  a  court  of  justice  for  the  trial  of  justiciable 
disputes  between  their  States.  They  cheated  a  Supreme  Court  for 
the  thirteen  States  and  such  others  as  should  be  added  to  the 
judicial  union,  and  invested  it  with  the  jurisdiction  of  all  cases  in 
law  or  equity  between  the  States,  which  considered  themselves  as 
sovereign  for  the  purposes  of  justice.  They  felt  that,  if  there  were 
an  agency  at  hand  and  of  their  own  creation  to  pass  upon  the 
question  of  right  and  wrong,  justice  would  in  the  end  prevail,  whether 
the  defendant  State  appeared  to  litigate  the  case,  or  whether  the 
judgment  rendered  in  its  presence  or  absence  were  executed  by  the 
losing  State.  They  appreciated  rightly  the  influence  of  public  opin- 
ion, they  recognized  that  public  opinion  often  succeeds  where  force 
would  fail,  and  the  appeal  to  "  a  decent  respect  to  the  opinions  of 
mankind,"  proclaimed  in  their  Declaration  of  Independence,  has  not 
been  in  vain. 

The  founders  of  the  Republic  and  the  Fathers  of  the  Constitution 
knew  also  that  everybody's  business  is  nobody's  concern,  and  instead 
of  pledging  the  States  "  united  as  one  strength,"  to  use  the  language 
of  Penn,  to  proceed  against  a  non-appearing  defendant  State,  they 
authorized  and  empowered  the  State  with  a  grievance  sounding  in  law 
or  in  equity  to  file  its  bill  in  the  Supreme  Court  against  the  defend- 
ant State,  and  in  its  absence,  if  it  failed  to  appear,  to  proceed  to 


PEACE  THROUGH  JUSTICE  71 

trial.  The  case  was  thus  brought  to  judgment  notwithstanding  the 
default  of  the  defendant.  Force  is  thus  not  needed  to  obtain  a 
judgment  based  upon  justice,  and  the  experience  of  the  Supreme 
Court  in  threescore  suits  and  more  between  the  States  shows  that 
compliance  with  a  judgment  based  upon  justice  follows  without  a 
resort  to  force.  Nay  more,  the  Government  of  the  United  States, 
"united  as  one  strength,"  does  not  consider  itself  above  justice;  it 
has  filed  its  bill  in  the  Supreme  Court  against  a  State  of  the  judicial 
Union,  and  it  has  both  sought  and  obtained  justice  at  the  hands  of 
the  Supreme  Court  against  a  State  of  the  Union,  which  was  once 
in  all  respects  and  considers  itself  for  the  purposes  of  justice  still  to 
be  a  sovereign  State.  In  this  interesting  case,  the  United  States 
claimed  ownership  of  a  portion  of  territory  likewise  claimed  by 
Texas,  and  which  figured  as  Greer  county  on  maps  of  that  State. 
Availing  itself  of  the  clause  of  the  Constitution  extending  the 
judicial  power  "  to  controversies  between  two  or  more  States,"  and 
vesting  the  Supreme  Court  with  original  jurisdiction  "  in  all  cases 
*  *  *  in  which  a  State  shall  be  a  part}^,"  the  United  States  filed 
its  bill  asking  "  a  decree  determining  the  true  line  between  the  United 
States  and  the  State  of  Texas ;  "  asking  "  whether  the  land  consti- 
tuting what  is  called  '  Greer  County  '  is  within  the  boundary  and 
jurisdiction  of  the  United  States  or  of  the  State  of  Texas;"  and 
asking  finally  that  "  its  rights,  as  asserted  in  the  bill,  be  established, 
and  that  it  have  such  other  relief  as  the  nature  of  the  case  may 
require"  (United  States  vs.  Texas,  1891,  143  U.  S.  Reports,  621). 
The  framers  of  the  Articles  of  Confederation  gave  the  Congress 
the  power  to  fix  the  quotas  of  revenue  needed  for  general  purposes ; 
the  individual  States  failed  to  honor  the  requisitions,  and  the  Con- 
federacy was  on  the  verge  of  bankruptcy.  In  the  Constitutional 
Convention  of  1787,  called  to  amend  the  Articles  of  Confederation 
and  to  make  them  adequate  to  the  needs  of  the  States,  it  was  pro- 
posed to  grant  the  general  Government  the  right  and  the  power  to 
coerce  the  States  in  such  cases.  The  proposal  was  indignantly  re- 
jected, but  by  a  very  simple  device  the  end  was  attained  by  peace- 
able means.  The  general  Government  Avas  given  the  right  to  levy 
the  tax  on  the  people  and  to  collect  it,  if  necessary,  by  suit  in  court 
without  a  resort  to  the  State  or  its  good  offices  with  the  citizen. 
In  like  manner,  without  the  power  of  coercion,  justice  is  done  be- 


72  PEACE  THROUGH  JUSTICE 

tween  the  plaintiff  and  defendant  State  by  authorizing  the  plaintiff 
State  to  set  the  Supreme  Court  in  motion  without  the  aid  of  the  other 
States,  indeed,  as  I  have  said,  without  their  knowledge,  and  a  judg- 
ment is  rendered  in  due  course  in  the  presence  or  absence  of  the  de- 
fendant State. 

In  the  plan  of  the  Virginia  delegation,  laid  before  the  Constitu- 
tional Convention  by  Edmund  Randolph  of  Virginia  on  May  29th, 
the  last  clause  of  the  sixth  resolution  authorized  the  national  legis- 
lature "  to  call  forth  the  force  of  the  Union  agst.  any  member 
of  the  Union  failing  to  fulfill  its  duty  under  the  articles  thereof,"  *  a 
proposition  likewise  contained  in  the  New  Jersey  plan,  introduced 
on  June  15th  by  William  Patterson  of  New  Jersey,  authorizing 
the  Federal  Executive  "  to  call  forth  ye  power  of  the  Confed- 
erated States,  or  so  much  thereof  as  may  be  necessary  to 
enforce  and  compel  an  obedience  to  such  acts,  or  an  observance  of 
such  treaties."  f 

A  very  little  experience  of  the  temper  of  the  Convention  convinced 
Madison  of  the  impracticability  of  this  provision,  author  though  he 
was  of  the  Virginian  plan,  so  that  on  May  31st,  but  two  days  after 
the  introduction  of  the  resolutions,  he  changed  his  mind,  as  appears 
from  the  folloAving  extract  from  the  debates : 

"  The  last  clause  of  Resolution  6  authorizing  the  exertion  of  the 
force  of  the  whole  agst.  a  delinquent  State  came  next  into  con- 
sideration. 

"  Mr.  Madison  observed  that  the  more  he  reflected  on  the  use  of 
force,  the  more  he  doubted  the  practicability,  the  justice  and  efficacy 
of  it  when  applied  to  people  collectively  and  not  individually, — a 
Union  of  the  States  containing  such  an  ingredient  seemed  to  provide 
for  its  own  destruction.  The  use  of  force  agst.  a  State,  would  look 
more  like  a  declaration  of  war,  than  an  infliction  of  punishment, 
and  would  probably  be  considered  by  the  party  attacked  as  a  dis- 
solution of  all  previous  compacts  by  which  it  might  be  bound.  He 
hoped  that  such  a  system  would  be  framed  as  might  render  this  re- 
course unnecessary,  and  moved  that  the  clause  be  postponed."  I 

*  Hunt's  edition  of  Madison's  Journal  of  Debates  in  the  Constitutional  Con- 
vention of  nSl,  vol.  1,  p.  16;  Faxrand's  Records  of  the  Federal  Convention  of 
1787,  vol.  1,  p.  21. 

t  Hunt,  vol.  1,  p.  142;  Farrand,  vol.  1,  p.  24.5. 

t  Hunt,  vol.  1,  pp.  47-8;  Farrand,  vol,  1,  p.  54. 


PEACE  THROUGH  JUSTICE  73 

Mr.  Madison  informs  us  that  "  this  motion  was  agreed  to  nem. 
con."  It  does  not  figure  in  the  Constitution  for  the  reasons  disclosed 
and  set  forth  in  the  debates. 

A  few  days  later,  to  be  specific,  on  June  8th,  Mr.  Madison  re- 
curred to  the  subject  and  confirmed  his  recantation  of  the  use  of 
force  against  a  State.     Thus : 

"  Could  the  national  resources,  if  exerted  to  the  utmost  enforce 
a  national  decree  agst.  Massts.  abetted  perhaps  by  several  of  her 
neighbours.'*  It  wd.  not  be  possible.  A  small  proportion  of  the 
Community  in  a  compact  situation,  acting  on  the  defensive,  and  at 
one  of  its  extremities  might  at  any  time  bid  defiance  to  the  National 
authority.  Any  Govt,  for  the  U.  States  formed  on  the  supposed 
practicability  of  using  force  agst.  the  unconstitutional  proceedings 
of  the  States,  wd.  prove  as  visionary  and  fallacious  as  the  Govt, 
of  Congs."  * 

The  views  thus  expressed  by  iMadison  survived  the  Convention  in 
which  they  were  formed  and  stated,  as  appears  from  the  following 
extract  from  a  letter  dated  October  24,  1787,  written  after  its  ad- 
journment to  his  friend  Jefferson: 

"  A  voluntary  observance  of  the  Federal  law  by  all  the  members 
could  never  be  hoped  for.  A  compulsive  one  could  evidently  never  be 
reduced  to  practice,  and  if  it  could,  involved  equal  calamities  to  the 
innocent  &  the  guilty,  the  necessity  of  a  military  force  both  ob- 
noxious &  dangerous,  and  in  general  a  scene  resembling  much 
more  a  civil  war  than  the  administration  of  a  regular  Government. 

"  Hence  was  embraced  the  alternative  of  a  Government  which  in- 
stead of  operating,  on  the  States,  should  operate  without  their 
intervention  on  the  individuals  composing  them;  and  hence  the 
change  in  the  principle  and  proportion  of  representation."  f 

So  much  for  the  Father  of  the  Constitution.  Next  as  to  its  classic 
expounder.  In  introducing  on  June  18th  his  plan  of  a  national 
and  higlily  centralized  form  of  government,  Alexander  Hamilton 
enumerated  "  the  great  and  essential  principles  necessary  for  the 
support  of  Government."  Among  these  "  great  and  essential  prin- 
ciples "  he  mentioned  force,  of  which  he  said :  J 

•  Hunt,  vol.  1,  p.  102;  Farrand,  vol.  1,  pp.  164-5. 

t  Hunt's  Writings  of  Jnmen  'Mndison,  vol.  5,  p.  10;  Farrand,  vol.  3,  pp.  131-2. 

X  Tht're  is  no  doubt  that  Madison  accurately  reported   Hamilton's  views  and 

language,  for  as  Mr.  Hunt  says  in  a  note  to  his  edition  of  Madison's  Journal: 


74  PEACE  THROUGH  JUSTICE 

"  Force  by  which  may  be  undestood  a  coertion  of  laws  or  coertion 
of  arms.  Congs.  have  not  the  former  except  in  few  cases.  In  par- 
ticular States,  this  coercion  is  nearly  sufficient;  tho'  he  held  it  in 
most  cases,  not  entirely  so.  A  certain  portion  of  military  force  is 
absolutely  necessary  in  large  communities.  Massts.  is  now  feeling 
this  necessity  &  making  provision  for  it.  But  how  can  this  force 
be  exerted  on  the  States  collectively.  It  is  impossible.  It  amounts 
to  a  war  between  the  parties.  Foreign  powers  also  will  not  be  idle 
spectators.  They  will  interpose,  the  confusion  will  increase,  and  a 
dissolution  of  the  Union  ensue."  * 

Hamilton,  as  in  the  case  of  Madison,  clung  to  the  views  which  he 
had  expressed  in  Convention,  and  expressed  them  with  peculiar  and 
convincing  force  in  the  Federalist,  written  to  justify  the  Constitu- 
tion, which  is,  as  is  well  known,  the  joint  product  of  the  minds  and 
hands  of  Hamilton,  Madison  and  Jay.  In  the  following  passage 
from  the  Federalist,  Hamilton  thus  pays  his  respects  to  force: 

"  Whoever  considers  the  populousness  and  strength  of  several  of 
these  States  singly  at  the  present  juncture,  and  looks  forward  to 
what  they  will  become,  even  at  the  distance  of  half  a  century,  will  at 
once  dismiss  as  idle  and  visionary  any  scheme  which  aims  at  regu- 
lating their  movements  by  laws  to  operate  upon  them  in  their  col- 
lective capacities,  and  to  be  executed  by  a  coercion  applicable  to  them 
in  the  same  capacities.  A  project  of  this  kind  is  little  less  romantic 
than  the  monster-taming  spirit  which  is  attributed  to  the  fabulous 
heroes  and  demi-gods  of  antiquity. 

"  Hamilton  happened  to  call  upon  Madison  while  the  latter  was  putting  the  last 
touches  to  this  speech  and  'acknowledged  its  fidelity,  without  suggesting  more 
than  a  few  verbal  alterations,  which  were  made  '  (Cf.  Madison's  Writings,  vol. 
2)  ";  Hunt,  vol.  1,  note  1,  p.  153. 

In  the  notes  for  his  speech  (I  Farrand,  p.  306),  are  the  following  headings 
under  section  5: 

Force  of  two  kinds: 

Coertion  of  laws;  coertion  of  arms. 

First  does  not  exist,  and  the  last  useless. 

Attempt  to  use  it  a  war  between  the  States. 

Foreign  aid. 

Madison's  account  of  Hamilton's  speech  on  the  question  of  coercion  is  also 
borne  out  bv  the  notes  of  Rufus  King,  like  Madison  and  Hamilton,  a  member  of 
the  Convention.    Under  the  caption  "  Force,"  Mr.  King  makes  Hamilton  say: 

"  The  Force  of  law  or  tlie  strength  of  Arms — the  former  is  inefficient  unless 
the  people:  have  the  habits  of  obedience — in  this  case  you  must  have  Arms — if  this 
doctrine  is  applied  to  States— the  system  is  Utopian— you  could  not  coerce  Vir- 
ginia "  (I  Farrand,  p.  303). 

*  Hunt's  edition  of  Madison's  Journal,  vol.  1,  pp.  154-5;  Farrand's  Records 
of  the  Federal  Convention,  vol.  1,  pp.  384-5. 


PEACE  THROUGH  JUSTICE  75 

"  Even  in  those  confederacies  which  have  been  composed  of  mem- 
bers smaller  than  many  of  our  counties,  the  principle  of  legislation 
for  sovereign  States,  supported  by  military  coercion,  has  never 
been  found  effectual.  It  has  rarely  been  attempted  to  be  employed 
but  against  the  weaker  members ;  and  in  most  instances  attempts  to 
coerce  the  refractory  and  disobedient  have  been  the  signals  of  bloody 
wars,  in  which  one  half  of  the  confederacy  has  displayed  its  ban- 
ners against  the  other  half."  * 

And  on  a  third  occasion,  when  converting  to  the  proposed  Consti- 
tution a  hostile  majority  of  the  New  York  Convention  by  force  of 
argument,  not  by  force  of  arms,  Hamilton  restated  his  views  on  this 
interesting  subject.  In  the  first  place,  he  declared  it  impossible  to 
coerce  States.     Thus : 

"  If  you  make  requisitions,  and  they  are  not  complied  with,  what 
is  to  be  done?  It  has  been  observed,  to  coerce  the  States  is  one  of 
the  maddest  projects  that  was  ever  devised.  A  failure  of  compli- 
ance will  never  be  confined  to  a  single  State.  This  being  the  case,  can 
we  suppose  it  wise  to  hazard  a  civil  war?  "  f 

In  the  next  place,  he  expressed  the  opinion  that  the  States  them- 
selves would  not  agree  to  coerce  others.     Thus : 

"  But  can  we  believe  that  one  State  will  ever  suffer  itself  to  be 
used  as  an  instrument  of  coercion?  The  thing  is  a  dream.  It  is 
impossible."  J 

To  the  same  effect  is  the  language  of  George  Mason,  the  bitterest 
opponent  of  the  Constitution,  as  Messrs.  Madison  and  Hamilton 
were  its  strongest  advocates.  On  the  matter  of  force,  the  opponents 
and  the  advocate  agreed.     Thus,  Mr.  Mason  said  on  June  20th: 

"  It  was  acknowledged  by  Mr.  Patterson  that  his  plan  could  not  be 
enforced  without  military  coercion.  Does  he  consider  the  force  of 
this  concession?  The  most  jarring  elements  of  nature;  fire  &  water 
themselves  are  not  more  incompatible  that  [than]  such  a  mixture  of 
civil  liberty  and  military  execution.  Will  the  militia  march  from 
one  State  to  another,  in  order  to  collect  the  arrears  of  taxes  from 
the  delinquent  members  of  the  Republic?  Will  they  maintain  an 
army  for  this  ])urpose?     Will  not  the  citizens  of  the  invaded  State 

*  Thr  FfifJcraliKt,  Fonl's  cdilinn,  IROH,  pp.  09-100. 

t  Klliot's  iJcbalc.i  in  the  Slate  Convcnlium  on  the  Adoption  of  the  Federal 
Constitution,  vol.  2,  pp.  232-3. 
t  Ibid.,  p.  233. 


76  PEACE  THROUGH  JUSTICE 

assist  one  another  till  they  rise  as  one  Man,  and  shake  off  the  Union 
altogether?  Rebellion  is  the  only  case  in  which  the  military  force  of 
the  State  can  be  properly  exerted  agst.  its  Citizens."  * 

Finall}',  lest  the  views  of  the  statesmen  of  the  Revolution,  the 
founders  of  the  Republic,  and  the  framers  of  the  Constitution,  be- 
come wearisome,  I  make  but  one  further  quotation.  In  advocating 
the  ratification  of  the  Constitution  by  the  Connecticut  Convention, 
Oliver  Ellsworth,  with  that  fine  poise  and  balance  of  mind  character- 
istic of  the  Senator  and  of  the  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  pointed  out  that  nothing  would  prevent  the 
States  from  falling  out  if  they  so  desired,  saying  on  this  point : 

"  If  the  United  States  and  the  individual  States  will  quarrel,  if 
they  want  to  fight,  they  may  do  it,  and  no  frame  of  government 
can  possibly  prevent  it."  f 

In  advocating  the  need  of  a  coercive  principle,  he  said: 

"  We  all  see  and  feel  this  necessity.  The  only  question  is.  Shall  it 
be  a  coercion  of  law,  or  a  coercion  of  arms?  There  is  no  other 
possible  alternative.  Where  will  those  who  oppose  a  coercion  of  law 
come  out?  Where  will  they  end?  A  necessary  consequence  of  their 
principles  is  a  war  of  the  States  one  against  the  other.  I  am  for 
coercion  by  law — that  coercion  which  acts  only  upon  delinquent  in- 
dividuals. This  Constitution  does  not  attempt  to  coerce  sovereign 
bodies.  States,  in  their  political  capacity.  No  coercion  is  applicable 
to  such  bodies,  but  that  of  an  armed  force.  If  we  should  attempt  to 
execute  the  laws  of  the  Union  by  sending  an  armed  force  against  a 
delinquent  State,  it  would  involve  the  good  and  bad,  the  innocent 
and  guilty,  in  the  same  calamity." 

In  these  various  extracts  it  is  to  be  observed  that  the  issue  is 
drawn  by  our  ancestors  between  the  coercion  of  law  and  the  coercion 
of  armed  force,  and  today,  as  then,  the  issue  is  still  between  law 
and  armed  force.  They  chose,  and  wisely,  a  Supreme  Court, 
in  which  law  should  be  administered,  and  they  left  the  appearance 

*  Hunt,  vol.  1,  pp.  194-5;  Farrand,  vol.  1,  pp.  339-40.  Madison's  account  of 
Mr.  Mason's  views  on  coeJrcing  a  State  is  confirmed  by  the  following  note  of 
Rufus  King: 

"The  Genl.  from  N.  Jersey  proposed  a  military  force  to  carry  Requisitions 
into  Execution.  This  never  can  be  accomplished.  You  can  no  more  unite  opposite 
Elements,  than  you  can  mingle  Fire  with  Water — military  coercion  wd.  punish 
the  innocent  with  the  guilty;  therefore  unjust"  (Farrand,  vol.  1,  p.  349). 

t  Elliot's  Debates,  vol.  2,  pp.  196-7;  Farrand's  Records  of  the  Federal  Con- 
vention, vol.  3,  p.  241. 


PEACE  THROUGH  JUSTICE  77 

of  the  defendant  State  and  the  execution  of  the  judgment  to  an  en- 
lightened and  irresistible  public  opinion,  or,  as  they  expressed  it  in 
the  Declaration  of  Independence,  to  "  a  decent  respect  to  the  opin- 
ions of  mankind." 

Nothing  truer  has  ever  been  said  than  Oliver  Ellsworth's  simple 
observation,  confirmed  by  the  experience  of  independent  or  federated 
States  of  the  Old  as  well  as  of  the  New  World,  that  if  they  want 
to  quarrel  and  if  they  want  to  fight  "  they  may  do  it,  and  no  form 
of  government,"  and  may  I  add  no  form  of  treaty  creating  a  league, 
alliance  or  coalition,  "  can  possibly  prevent  it."  A  wise  and  far- 
seeing  statesman  of  our  own  day,  fit  company  for  Ellsworth  and  his 
associates,  has  stated  this  simple  truth  in  a  more  elaborate  and 
analytical  form. 

"  There  are,"  as  Secretary  of  State  Root  said  in  laying  the 
corner-stone  of  the  building  for  the  International  Bureau  of  the 
American  Republics,  "  no  international  controversies  so  serious  that 
they  cannot  be  settled  peacefully  if  both  parties  really  desire  peace- 
able settlement,  while  there  are  few  causes  of  dispute  so  trifling  that 
they  cannot  be  made  the  occasion  of  war  if  either  party  really  desires 
war.  The  matters  in  dispute  between  nations  are  nothing;  the 
spirit  which  deals  with  them  is  everything."  * 

We  must  endeavor  to  put  the  new  spirit  into  the  old  institutions, 
even  although  in  so  doing  the  new  wine  may  destroy  some  of  the 
bottles.  We  must  rear  our  international  structure  upon  the  good 
faith  of  nations,  for,  if  they  do  not  keep  the  given  word,  treaties  and 
conventions  are  but  worthless  things.  We  must  offer  every  induce- 
ment to  good  faith  and,  as  an  indication  of  good  faith  on  our  part, 
we  should  not  ask  nations  to  enter  into  treaties  which  we  ourselves 
may  not  keep  and  which  we  should  know  cannot  be  kept  by  them; 
because  the  failure  to  observe  a  solemn  compact  not  only  questions 
the  good  faitli  of  the  contracting  parties  at  the  moment  of  under- 
taking the  obligation,  but  weakens  the  force  even  of  those  treaties 
which  we  can  reasonably  expect  to  be  observed.  We  should  not  in 
this  matter  take  counsel  of  despair  and  refuse  to  enter  into  treaties, 
but  of  experience,  and  knowing  tlie  temper  of  sovereign  States,  seek 
only  at  any  given  time  to  conclude  agreements  which  past  experience 
leads  us  to  believe  will  be  observed,  and  we  must  seriously  set  about 
*  American  Journal  of  International  Law,  vol.  2,  p.  624  (1908). 


78  PEACE  THROUGH  JUSTICE 

the  delicate,  difficult,  and  time-consuming  task  of  transferring  the 
standard  of  conduct  from  individuals  to  States,  in  order  that  agree- 
ments wliich  today  seem  to  be  impossible  may  on  some  distant  morrow 
become  possible  of  observance.  We  must  remember,  as  President 
Roosevelt  has,  both  in  and  out  of  office,  repeatedly  pointed  out,  that 
there  is  not  and  that  there  cannot  be  a  difference  between  public  and 
private  morality,  and  just  as  he  bent  the  corporation  to  the  standard 
of  conduct  of  the  indi\adual,  so  must  we  manfully  endeavor  to  create 
an  irresistible  public  opinion,  which  will  compel  the  conduct  of 
nations  to  square  with  their  professions  and  to  test  both  by  the 
standard  of  conduct  of  the  individual.  As  a  step  to  this  goal,  which 
we  should  always  have  in  view,  I  would  suggest  that  we  conclude 
treaties  of  a  novel  or  far-reaching  kind  for  a  short  period — five 
years,  for  example — in  order  that,  as  the  result  of  experience, 
nations  can  refuse  to  continue  an  obligation  which  they  find  burden- 
some or  unacceptable,  without  sacrificing  the  foundation  of  good 
faith  upon  which  all  must  in  the  end  depend.  In  the  light  of  expe- 
rience nations  can  then  determine  whether  it  is  consistent  with  their 
interests,  of  which  they  must  be  the  judges,  that  the  treaty  be  con- 
tinued or  that  it  be  discontinued.  We  should  not,  however,  refuse 
to  contract  because  sometimes  good  faith  is  not  kept,  but  growing 
wiser  by  the  experience  of  the  past,  not  to  speak  of  the  present  day, 
we  should  be  more  solicitous  in  the  future  to  conclude  only  agree- 
ments which  experience  has  shown  or  shows  can  be  and  which  there- 
fore will  be  observed. 

We  must  act  as  men  of  affairs  in  basing  our  actions  upon  the 
probable,  not  upon  the  possible,  for  a  public  opinion  can  rarely  be 
created  for  the  latter,  and  it  can  only  be  developed  for  the  former  as 
the  result  of  much  wisdom,  prudence,  and  well-directed  effort. 

The  action  of  the  Senate,  in  the  exercise  of  its  constitutional 
treaty-making  power,  upon  the  treaties  of  1911  between  the  United 
States  on  the  one  hand,  and  France  and  Great  Britain  on  the  other, 
providing  for  unlimited  arbitration,  is  an  example  of  an  unsuccess- 
ful attempt  to  commit  the  Government  to  a  course  of  conduct  which 
lacked  the  support  of  public  opinion  and  in  behalf  of  which  course 
of  conduct  public  opinion  could  not  be  created. 

If  States  claiming  to  be  sovereign  spurned  coercion,  nations  act- 
ually sovereign  are  not  likely  to  accept  coercion,  Personall}^,  I  prefer 


PEACE  THROUGH  JUSTICE  79 

the  Supreme  Court  of  the  Fathers  of  the  Constitution,  with  all  its  im- 
perfections, to  the  project  of  Penn  armed  with  force  from  head  to 
foot,  and  I  believe  that  the  statesmen  of  the  future,  like  the  statesmen 
of  the  past,  will  prefer  to  proceed  from  the  known  to  the  unknown 
just  as  the  patriots  of  the  Revolution  proceeded  from  the  Privy 
Council  of  the  Colonies  to  the  Supreme  Court  of  the  States. 

May  we  not,  on  the  eve  of  an  International  Conference,  say  with 
Washington  on  the  eve  of  the  International  Conference  of  1787: 
"  Let  us  raise  a  standard  to  which  the  wise  and  the  honest  can  repair. 
The  event  is  in  the  hands  of  God." 

We  should  not  forget  in  our  eagerness  to  have  justice  as  adminis- 
tered by  the  Supreme  Court  enter  into  and  control  the  practice  of 
nations,  that  the  principle  with  wliich  we  are  so  familiar  is  unknown 
in  other  countries  Avhere  courts  of  justice  pass  only  upon  suits 
between  private  suitors,  and  do  not  pass  upon  the  sovereign  powers 
of  States.  We  must  not  ask  too  much  at  once.  We  should  rather 
endeavor  to  inform  public  opinion  in  foreign  countries  and  to  enlist  it 
in  behalf  of  the  judicial  settlement  of  disputes  between  States.  We 
ourselves  should  not  interpose  requirements  of  a  kind  to  delay  the 
acceptance  of  the  principle  which  we  advocate  and  the  practice  for 
which  we  contend.  This  has  never  been  more  clearly  pointed  out 
than  by  Mr.  Root  in  the  following  passage : 

"  I  assume  that  you  are  going  to  urge  that  disputes  between 
nations  shall  be  settled  by  judges  acting  under  the  judicial  sense  of 
honorable  obligation,  with  a  judicial  idea  of  impartiality,  rather  than 
by  diplomats  acting  under  the  diplomatic  ideas  of  honorable  obliga- 
tion and  feeling  bound  to  negotiate  a  settlement  rather  than  to 
pass  without  fear  or  favor  upon  questions  of  fact  and  law. 

"  It  seems  to  mo  that  such  a  change  in  the  fundamental  idea  of 
what  an  arbitration  should  be  is  essential  to  any  very  great  further 
extension  of  tlie  idea  of  arbitration.  I  have  been  much  surprised, 
however,  to  see  how  many  people  there  are  of  ability  and  force  who 
do  not  agree  with  this  idea  at  all,  particularly  people  on  the  other 
side  of  the  Atlantic.  Tlie  extraordinary  scope  of  judicial  power 
in  this  country  has  accustomed  us  to  see  the  operations  of  govern- 
ment and  questions  arising  between  sovereign  States  submitted  to 
judges  who  apply  the  test  of  conformity  to  established  principles 
and  rules  of  conduct  embodied  in  our  constitutions. 


80  PEACE  THROUGH  JUSTICE 

"  It  seems  natural  and  proper  to  us  that  the  conduct  of  govern- 
ment affecting  substantial  rights,  and  not  depending  upon  questions 
of  polic}',  should  be  passed  upon  by  the  courts  when  occasion  arises. 
It  is  easy,  therefore,  for  Americans  to  grasp  the  idea  that  the  same 
method  of  settlement  should  be  applied  to  questions  growing  out  of 
the  conduct  of  nations  and  not  involving  questions  of  policy. 

"  In  countries,  however,  where  the  courts  exercise  no  such  power, 
the  idea  is  quite  a  new  one  to  most  people,  and  if  it  is  to  prevail, 
there  must  be  a  process  of  education."  * 

X 

To  endeavor  to  create  an  enlightened  public  opinion  in  behalf  of 
peaceable  settlement  in  general,  and  in  particular  in  behalf  of  the 
foregoing  nine  propositions,  in  order  that,  if  agreed  to,  they  may 
be  put  into  practice  and  become  effective,  in  response  to  the  appeal 
to  that  greatest  of  sanctions,  "  a  decent  respect  to  tlie  opinions  of 
mankind." 

If  for  physical  force  we  would  substitute  justice,  we  must  create 
a  public  opinion  in  favor  of  justice,  as  we  must  create  a  public 
opinion  in  behalf  of  any  and  every  reform  which  we  hope  to  see 
triumph.  The  more  difficult  the  problem,  the  greater  the  need  that 
we  set  about  it,  and  the  sooner  we  begin  the  better  it  will  be  for  the 
cause  which  we  champion.  There  are  many  who  advocate  short-cuts 
to  international  justice,  and  therefore  to  international  peace,  just  as 
there  are  many  who  advocate  short-cuts  to  knowledge ;  but  the  pithy 
reply  of  Pythagoras  to  his  royal  but  backward  pupil  is  as  true  today 
as  it  was  when  uttered  centuries  ago,  that  there  is  no  royal  road  to 
learning.  To  change  the  standard  of  conduct,  and  as  a  preliminary 
to  this  to  change  the  standard  of  thought,  is  indeed  a  difficult  task; 
but  if  mankind  is  to  prefer  the  test  of  justice  to  the  test  of  force, 
we  must  educate  mankind  to  a  belief  in  justice.  If  we  succeed,  justice 
will  prevail  between  nations  as  between  men ;  if  we  fail,  justice  may 
partially  prevail  between  men,  as  it  largely  does  today,  but  not 
between  and  among  the  nations.  The  problem  before  us  is  therefore 
one  of  education  from  a  false  to  a  true  and  ennobling  standard. 
If  public  opinion  can  be  educated  in  one  country,  as,  for  instance,  in 
the  United  States^  it  can  be  educated  in  other  countries,  and  we  can 
*  Root's  Addresses  on  International  Subjects,  pp.  151-2. 


PEACE  THROUGH  JUSTICE  81 

confidently  look  forward  to  a  public  opinion  in  all  countries — 
universal,  international,  and  as  insistent  as  it  is  universal  and  inter- 
national. A  mere  statute,  we  know  by  a  sad  experience,  will  not  make 
men  virtuous,  and  a  mere  treaty — for  a  treaty  is  an  international 
statute — will  not  make  the  nations  virtuous.  We  have  failed  in  the 
one,  and  we  are  doomed  to  failure  in  the  other  attempt,  for  nations, 
composed  of  these  very  men  and  women,  are  not  to  be  reformed  by 
statute  any  more  than  the  men  and  women  composing  them.  Without 
public  opinion  the  statute — national  or  international — is  a  dead 
letter;  with  public  opinion  the  statute — national  or  international — 
is  a  li\dng  force.  With  public  opinion  all  things  are  possible ;  without 
public  opinion  we  may  hope  to  do  nothing.  Were  Archimedes  living 
today,  and  if  he  were  speaking  of  things  international,  he  would 
declare  public  opinion  the  lever  that  moves  the  world. 

In  speaking  of  public  opinion,  Mr.  Root,  whom  I  have  so  often 
quoted,  has  said : 

"  There  is  but  one  power  on  earth  that  can  preserve  the  law  for 
the  protection  of  the  poor,  the  weak,  and  the  humble;  there  is  but 
one  power  on  earth  that  can  preserve  the  law  for  the  maintenance  of 
civilization  and  humanity,  and  that  is  the  power,  the  mighty  power, 
of  the  public  opinion  of  mankind. 

"  Without  it  your  leagues  to  enforce  peace,  your  societies  for  a 
world's  court,  your  peace  conventions,  your  peace  endowments  are 
all  powerless,  because  no  force  moves  in  this  world  until  it  ultimately 
has  a  public  opinion  behind  it. 

"  The  thing  that  men  fear  more  than  they  do  the  sheriff  or  the 
policeman  or  the  State's  prison  is  the  condemnation  of  the  com- 
munity in  which  they  live. 

"  The  thing  that  among  nations  is  the  most  potent  force  is  the 
universal  condemnation  of  mankind.  And  even  during  this  terrible 
struggle  we  have  seen  the  nations  appealing  from  day  to  day,  appeal- 
ing by  speech  and  by  pen  and  by  press,  for  the  favorable  judgment 
of  mankind,  the  public  opinion  of  the  world.  That  establishes 
standards  of  conduct." 

Conclusion. 

I  have  endeavored  briefly  to  lay  before  you  a  constructive  program 
upon  which  we  may  concentrate  our  efforts,  in  the  hope  that  we  may 


82  PEACE  THROUGH  JUSTICE 

produce  some  effect  upon  public  opinion,  which  is  today  the  master 
of  us  all.  I  have  confined  myself  to  plans  with  which  you  are 
familiar,  and  which  are  familiar  to  all  those  interested  in  interna- 
tional peace.  In  outlining  these  measures  I  have  not  gone  into  detail, 
but  have  contented  m^^self  with  a  statement  of  the  general  principles, 
in  the  belief  that,  if  we  can  catch  the  eye  or  the  ear  of  authority, 
we  can  safely  trust  to  the  wit  and  wisdom  of  nations  to  take  the  steps 
necessary  to  put  the  project,  based  upon  the  general  principles,  into 
effect.  And  we  have,  in  my  opinion,  a  better  chance  of  reaching 
responsible  leaders  of  thought  if  we  stop  with  the  general  principles 
upon  which  we  can  all  agree,  leaving  to  them  the  task,  or  rather,  I 
should  say,  the  privilege,  of  working  out  the  details. 

But  I  have  said  enough  on  these  matters,  and  I  have  already  tres- 
passed too  long  upon  your  indulgence.  Let  me  hold  you,  however, 
yet  a  little  while,  that  I  may  return  to  The  Hague  Conferences  with 
which  I  started.  I  am  the  more  Inclined  further  to  trespass  upon 
your  time,  as  it  is  In  the  Interest  of  a  great  cause,  and  because  the 
words  which  I  wish  to  lay  before  you  are  not  mine,  although  I  would 
make  them  mine  If  I  could  by  quoting  them. 

In  submitting  The  Hague  Conventions  and  Declarations  of  1907 
to  the  Senate,  Mr.  Root,  then  Secretary  of  State,  said: 

"  The  most  valuable  result  of  the  Conference  of  1899  was  that  it 
made  the  work  of  the  Conference  of  1907  possible.  The  achievements 
of  the  Conferences  justify  the  belief  that  the  world  has  entered  upon 
an  orderly  process  through  which,  step  by  step,  in  successive  Con- 
ferences, each  taking  the  work  of  Its  predecessor  as  its  point  of 
departure,  there  may  be  continual  progress  toward  making  the  prac- 
tice of  civilized  nations  conform  to  their  peaceful  professions."  * 

And,  still  further  developing  the  same  thought,  the  same  great 
statesman  said,  in  an  introduction  to  a  collection  of  the  texts  of  the 
Peace  Conferences  at  The  Hague: 

"  The  question  about  each  International  conference  is  not  merely 
what  It  has  accomplished,  but  also  what  It  has  begun,  and  what  it 
has  moved  forward.  Not  only  the  conventions  signed  and  ratified, 
but  the  steps  taken  toward  conclusions,  which  may  not  reach  prac- 
tical and  effective  form  for  many  years  to  come,  are  of  value.  Some 
of  the  resolutions  adopted  by  the  last  conference  do  not  seem  to 
*  Senate  Document  No.  444,  60th  Congress,  1st  session,  p.  63. 


PEACE  THROUGH  JUSTICE  83 

amount  to  very  much  by  themselves,  but  each  one  marks  on  some 
line  of  progress  the  farthest  point  to  which  the  world  is  yet  willing 
to  go.  They  are  like  cable  ends  buo^'ed  in  mid-ocean,  to  be  picked 
up  hereafter  by  some  other  steamer,  spliced,  and  continued  to  shore. 
The  greater  the  reform  proposed,  the  longer  must  be  the  process 
required  to  bring  many  nations  differing  widely  in  their  laws, 
customs,  traditions,  interests,  prejudices,  into  agreement.  Each 
necessary  step  in  the  process  is  as  useful  as  the  final  act  wliich  crowns 
the  work  and  is  received  with  public  celebration."  * 

And,  finally,  in  the  following  passages,  pronounced  by  the  most 
distinguished  of  international  lawyers  to  be  wisdom  incarnate  {la 
sagesse  elle-meme),  Mr.  Root  said  in  his  instructions  to  the  American 
delegation  to  the  Second  Conference: 

"1.  In  the  discussions  upon  every  question  it  is  important  to  re- 
member that  the  object  of  the  Conference  is  agreement,  and  not  com- 
pulsion. If  such  Conferences  are  to  be  made  occasions  for  trying  to 
force  nations  into  positions  which  they  consider  against  their  inter- 
ests, the  Powers  cannot  be  expected  to  send  representatives  to 
them.  It  is  important  also  that  the  agreements  reached  shall  be 
genuine  and  not  reluctant.  Otherwise  they  will  inevitably  fail  to 
receive  approval  when  submitted  for  the  ratification  of  the  Powers 
represented.  Comparison  of  views  and  frank  and  considerate 
explanation  and  discussion  may  frequently  resolve  doubts,  obviate 
difficulties,  and  lead  to  real  agreement  upon  matters  which  at  the 
outset  have  appeared  insurmountable.  It  is  not  wise,  however,  to 
carry  this  process  to  the  point  of  irritation.  After  reasonable  dis- 
cussion, if  no  agreement  is  reached,  it  is  better  to  lay  the  subject 
aside,  or  refer  it  to  some  future  Conference  in  the  hope  that  inter- 
mediate consideration  may  dispose  of  the  objections.  Upon  some 
questions  where  an  agreement  by  only  a  part  of  the  Powers  repre- 
sented would  in  itself  be  useful,  such  an  agreement  may  be  made,  but 
it  should  always  bo  with  the  most  unreserved  recognition  that  the 
other  Powers  withhold  their  concurrence  with  equal  propriety  and 
right. 

"  The  immediate  results  of  such  a  Conference  must  always  be 
limited  to  a  small  part  of  the  field  which  the  more  sanguine  have 
hoped  to  see  covered ;  but  each  successive  Conference  will  make  the 
•  Scott's  Texts  of  the  Peac&  Conferences  at  The  Uague,  p.  iv. 


84  PEACE  THROUGH  JUSTICE 

positions  reached  in  the  preceding  Conference  its  point  of  departure, 
and  will  bring  to  the  consideration  of  further  advances  toward  inter- 
national agreements  opinions  aifected  by  the  acceptance  and  appli- 
cation of  the  previous  agreements.  Each  Conference  will  inevitably 
make  further  progress  and,  by  successive  steps,  results  may  be  ac- 
complished which  have  formerly  appeared  impossible. 

"  You  should  keep  always  in  mind  the  promotion  of  this  contin- 
uous process  through  which  the  progressive  development  of  inter- 
national justice  and  peace  may  be  carried  on;  and  you  should  regard 
the  work  of  the  Second  Conference,  not  merely  with  reference  to  the 
definite  results  to  be  reached  in  that  Conference,  but  also  with  refer- 
ence to  the  foundations  which  may  be  laid  for  further  results  in 
future  Conferences.  It  may  well  be  that  among  the  most  valuable 
services  rendered  to  civilization  by  this  Second  Conference  will  be 
found  the  progress  made  in  matters  upon  which  the  delegates  reach 
no  definite  agreement."  * 

The  irreducible  minimum  may  well  be  the  maximum  of  achievement 
at  any  given  time,  and  in  all  our  meetings,  and  in  all  our  discussions, 
we  should  bear  in  mind  the  wise  counsel  of  a  great  French  statesman 
at  the  First  and  Second  Hague  Peace  Conferences  that: 

"  We  are  here  to  unite,  not  to  divide." 

*  Foreign  Relations,  1907,  pt.  2,  pp.  1129-30;  Instructions  to  the  American 
Delegates,  pp.  71-2. 


APPENDIX 

DECLARATION  OF  THE  RIGHTS  AND  DUTIES  OF  NATIONS 

Adopted  hy  the  American  Institute  of  International  Law  at  its  first  session 
in  the  City  of  Washington,  January  6,  1916 

WHEREAS  the  municipal  law  of  civilized  nations  recognizes  and 
protects  the  right  to  life^  the  right  to  liberty^  the  right  to  the  pursuit  of 
happiness,  as  added  by  the  Declaration  of  Independence  of  the  United 
States  of  America,  the  right  to  legal  equality,  the  right  to  property,  and 
the  right  to  the  enjoyment  of  the  aforesaid  rights;  and 

WHEREAS  these  fundamental  rights,  thus  universally  recognized, 
create  a  duty  on  the  part  of  the  peoples  of  all  nations  to  observe  them;  and 

WHEREAS  according  to  the  political  philosophy  of  the  Declaration 
of  Independence  of  the  United  States,  and  the  universal  practice  of  the 
American  Republics,  nations  or  governments  are  regarded  as  created  by 
the  people,  deriving  their  just  powers  from  the  consent  of  the  governed, 
and  are  instituted  among  men  to  promote  their  safety  and  happiness  and 
to  secure  to  the  people  the  enjoyment  of  their  fundamental  rights;  and 

WHEREAS  the  nation  is  a  moral  or  juristic  person,  the  creature  of 
law,  and  subordinated  to  law  as  is  the  natural  person  in  political  society; 
and 

WHEREAS  we  deem  that  these  fundamental  rights  can  be  stated  in 
terms  of  international  law  and  apjDlied  to  the  relations  of  the  members  of 
the  society  of  nations,  one  with  another,  just  as  they  have  been  applied  in 
the  relations  of  the  citizens  or  subjects  of  the  states  forming  the  society 
of  nations ;  and 

WHEREAS  these  fundamental  rights  of  national  jurisprudence, 
namely,  the  right  to  life,  the  right  to  liberty,  the  right  to  the  pursuit 
of  happiness,  the  right  to  equality  before  the  law,  the  right  to  property, 
and  the  right  to  the  observance  thereof  are,  when  stated  in  terms  of 
international  law,  the  right  of  the  nation  to  exist  and  to  protect  and  to 
conserve  its  existence;  the  right  of  independence  and  the  freedom  to 
develop  itself  without  interference  or  control  from  other  nations;  the 
right  of  equality  in  law  and  before  law;  the  right  to  territory  within 
defined  boundaries  and  to  exclusive  jurisdiction  therein;  and  the  right  to 
the  observance  of  these  fundamentil  rights;  and 

85 


86  APPENDIX 

WHEREAS  the  rights  and  the  duties  of  nations  are,  by  virtue  of 
membership  in  the  society  thereof,  to  be  exercised  and  performed  in 
accordance  with  the  exigencies  of  their  mutual  Interdependence  expressed 
in  the  preamble  to  the  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes  of  the  First  and  Second  Hague  Peace  Conferences, 
recognizing  the  solidarity  which  unites  the  members  of  the  society  of 
civilized  nations; 

THEREFORE,  The  American  Institute  of  International  Law, 
at  its  first  session,  held  in  the  City  of  Washington,  in  the  United  States 
of  America,  on  the  sixth  day  of  January,  1916,  adopts  the  following  six 
articles  together  with  the  commentary  thereon,  to  be  known  as  its 

Declaration  of  the  Rights  and  Duties  of  Nations. 

I.  Every  nation  has  the  right  to  exist,  and  to  protect  and  to  conserve 
its  existence;  but  this  right  neither  implies  the  right  nor  justifies  the  act 
of  the  state  to  protect  itself  or  to  conserve  its  existence  by  the  commission 
of  unlawful  acts  against  innocent  and  unoffending  states. 

II.  Every  nation  has  the  right  to  independence  in  the  sense  that,  it 
has  a  right  to  the  pursuit  of  happiness  and  is  free  to  develop  itself  with- 
out interference  or  control  from  other  states,  provided  that  in  so  doing  it 
does  not  interfere  with  or  violate  the  rights  of  other  states. 

III.  Every  nation  is  in  law  and  before  law  the  equal  of  every  other 
nation  belonging  to  the  society  of  nations,  and  all  nations  have  the  right 
to  claim  and,  according  to  the  Declaration  of  Independence  of  the  United 
States,  "  to  assume,  among  the  powers  of  the  earth,  the  separate  and 
equal  station  to  which  the  laws  of  nature  and  of  nature's  God  entitle 
them." 

IV.  Every  nation  has  the  right  to  territory  within  defined  boundaries 
and  to  exercise  exclusive  jurisdiction  over  its  territory,  and  all  persons 
whether  native  or  foreign  found  therein. 

V.  Ever}"  nation  entitled  to  a  right  by  the  law  of  nations  is  entitled 
to  have  that  right  respected  and  protected  by  all  other  nations,  for 
right  and  duty  are  correlative,  and  the  right  of  one  is  the  duty  of  all 
to  observe. 

VI.  International  law  is  at  one  and  the  same  time  both  national  and 
international:  national  in  the  sense  that  it  is  the  law  of  the  land  and 
applicable  as  such  to  the  decision  of  all  questions  involving  its  principles; 
international  in  the  sense  that  it  is  the  law  of  the  society  of  nations  and 
applicable  as  such  to  all  questions  between  and  among  the  members  of 
the  society  of  nations  involving  its  principles. 


APPENDIX  87 

Official  Commentary  upon  the  Declaration  of  the  Rights  and  Duties  of 
Nations,  adopted  January  6,  1916. 

I.  Every  nation  has  the  right  to  exist,  and  to  protect  and  to  conserve 
its  existence;  but  this  right  neither  implies  the  right  nor  justifies  the  act 
of  the  state  to  protect  itself  or  to  conserve  its  existence  by  the  commission 
of  unlawful  acts  against  innocent  and  imoffending  states. 

This  right  is  to  be  understood  in  the  sense  in  which  the  right  to  life 
is  understood  in  national  law,  according  to  which  it  is  unlawful  for  a 
human  being  to  take  human  life,  unless  it  be  necessary  so  to  do  in  self- 
defense  against  an  unlawful  attack  threatening  the  life  of  the  party 
unlawfully  attacked. 

In  the  Chinese  Exclusion  Case  (reported  in  130  United  States 
Reports,  pp.  581,  606),  decided  by  the  Supreme  Court  of  the  United 
States  in  1888,  Mr.  Justice  Field  said  for  the  Court: 

To  preserve  its  independence,  and  give  security  against  foreign 
aggression  and  encroachment,  is  the  highest  duty  of  every  nation, 
and  to  attain  these  ends  nearly  all  other  considerations  are  to  be 
subordinated.  It  matters  not  in  what  form  such  aggression  and  en- 
croachment come,  whether  from  the  foreign  nation  acting  in  its 
national  character  or  from  vast  hordes  of  its  people  crowding  in 
upon  us.  The  government,  possessing  the  powers  which  are  to  be 
exercised  for  protection  and  security,  is  clothed  with  authority  to 
determine  the  occasion  on  which  the  powers  shall  be  called  forth; 
and  its  determination,  so  far  as  the  subjects  affected  are  concerned, 
are  necessarily  conclusive  upon  all  its  departments  and  officers. 

The  right  of  a  state  to  exist  and  to  protect  and  to  conserve  its  exist- 
ence is  to  be  understood  in  the  sense  in  which  the  right  of  an  individual 
to  his  life  was  defined,  interpreted  and  applied  in  terms  applicable  alike 
to  nations  and  individuals  in  the  well-known  English  case  of  Regina  vs. 
Dudley  (reported  in  15  Cox's  Criminal  Cases,  p.  621';  It  Queen's  Bench 
Division,  p.  273),  decided  by  the  Queen's  Bench  Division  of  the  High 
Court  of  Justice  in  1881,  to  the  effect  tliat  it  was  unlawful  for  ship- 
wrecked saih)rs  to  take  the  life  of  one  of  their  number,  in  order  to  pre- 
serve their  own  lives,  because  it  was  unlawful  according  to  the  common 
law  of  England  for  an  English  subject  to  take  human  life,  unless  to 
defend  himself  against  an  unlawful  attack  of  the  assailant  threatening 
the  life  of  the  party  unlawfully  attacked. 

The  right  of  a  State  to  exist  and  to  protect  and  to  conserve  its 
existence,  as  laid  down  by  the  Supreme  Court  of  the  United  States,  is 


88  APPENDIX 

recognized  not  merely  in  tlie  United  States  but  in  Latin  America,  as 
appears  from  the  views  of  the  well-known  publicists,  Messrs.  Bello  and 
Calvo,  who  may  be  considered  representative  of  Latin  American  thought 
and  practice. 

Thus  Bello,  writing  in  1832,  said: 

There  is  no  doubt  that  every  nation  has  the  right  of  self-preser- 
vation and  is  entitled  to  take  protective  measures  against  any  danger 
whatsoever;  but  this  danger  must  be  great,  manifest  and  imminent, 
in  order  to  make  it  lawful  for  us  to  exact  by  force  that  another  nation 
alter  its  institutions  for  our  benefit.  (Andres  Bello,  Principios  de 
Derecho  de  Jetites,  part  1,  chap.  1,  VII.) 

And  Calvo,  half  a  century  later,  said: 

One  of  the  essential  rights  inherent  in  the  sovereignty  and  the 
independence  of  states  is  that  of  self-preservation.  This  right  is 
the  first  of  all  absolute  or  permanent  rights  and  is  the  fundamental 
basis  of  a  great  number  of  accessory,  secondary,  or  occasional  rights. 
We  may  say  that  it  constitutes  the  supreme  law  of  nations,  as  well 
as  the  most  imperative  duty  of  citizens,  and  a  society  that  fails  to 
repel  aggression  from  without  neglects  its  moral  duties  toward  its 
members  and  fails  to  live  up  to  the  very  purpose  of  its  institution. 
Carlos  Calvo,  Le  Droit  International  Theorique  et  Pratique,  5th 
ed.,  Vol.  1,  §  208.)  -• 

II.  Every  nation  has  the  right  to  independence  in  the  sense  that,  it 
has  a  right  to  the  pursuit  of  happiness  and  is  free  to  develop  itself  without 
interference  or  control  from  other  states,  provided  that  in  so  doing  it  does 
not  interfere  with  or  violate  the  rights  of  other  states. 

III.  Every  nation  is  in  law  and  before  law  the  equal  of  every  other 
state  composing  the  society  of  nations,  and  all  nations  have  the  right  to 
claim  and,  according  to  the  Declaration  of  Independence  of  the  United 
States,  "  to  assume,  among  the  powers  of  the  earth,  the  separate  and 
equal  station  to  which  the  laws  of  nature  and  of  nature's  God  entitle 
them." 

The  right  to  independence  and  its  necessary  corollary,  equality,  is  to 
be  understood  in  the  sense  in  which  it  was  defined  in  the  following  pas- 
sage quoted  from  the  decision  of  the  great  English  admiralty  judge.  Sir 
William  Scott,  later  Lord  Stowell,  in  the  case  of  The  Louis  (reported  in 
2  Dodson's  Reports,  pp.  210,  243-44),  decided  in  1817: 

Two  principles  of  public  law  are  generally  recognized  as  funda- 
mental.    One  is  the  perfect  equality  and  entire  independence  of  all 


APPENDIX  89 

distinct  states.  Relative  magnitude  creates  no  distinction  of  right; 
relative  imbecility,  whether  permanent  or  casual,  gives  no  additional 
•  right  to  the  more  powerful  neighbor;  and  any  advantage  seized  upon 
that  groimd  is  mere  usurpation.  This  is  the  great  foundation  of 
public  law,  which  it  mainly  concerns  the  peace  of  mankind,  both  in 
their  politic  and  private  capacities,  to  preserve  inviolate.  The 
second  is,  that  all  nations  being  equal,  all  have  an  equal  right  to  the 
uninterrupted  use  of  the  unappropriated  parts  of  the  ocean  for  their 
navigation.  In  places  where  no  local  authority  exists,  where  the 
subjects  of  all  states  meet  upon  a  footing  of  entire  equality  and 
independence,  no  one  state,  or  any  of  its  subjects,  has  a  right  to 
assume  or  exercise  authority  over  the  subjects  of  another. 

The  right  of  equality  is  also  to  be  understood  in  the  sense  in  which 
it  was  stated  and  illustrated  by  John  Marshall,  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  who  said,  in  deciding  the  case  of 
The  Antelope  in  1825  (reported  in  10  Wheaton's  Reports,  pp.  66,  122): 

In  this  commerce  thus  sanctioned  by  universal  assent,  every 
nation  had  an  equal  right  to  engage.  How  is  this  right  to  be  lost.'' 
Each  may  renounce  it  for  its  own  people;  but  can  this  renunciation 
aifect  others  ? 

No  principle  of  general  law  is  more  universally  acknowledged, 
than  the  perfect  equality  of  nations.  Russia  and  Geneva  have  equal 
rights.  It  results  from  this  equality,  that  no  one  can  rightfully 
impose  a  rule  on  another.  Each  legislates  for  itself,  but  its  legisla- 
tion can  operate  on  itself  alone.  A  right,  then,  which  is  vested  in  all, 
by  the  consent  of  all,  can  be  divested  only  by  consent;  and  this 
[slave]  trade,  in  which  all  have  participated,  must  remain  lawful  to 
those  who  can  not  be  induced  to  relinquish  it.  As  no  nation  can 
prescribe  a  rule  for  others,  none  can  make  a  law  of  nations;  and 
this  traffic  remains  lawful  to  those  whose  governments  have  not 
forbidden  it. 

The  right  of  equality  is  further  to  be  understood  in  the  sense  in 
which  it  was  expressed  and  illustrated  by  Mr.  Elihu  Root,  in  the  following 
passage  from  the  address  which  he  delivered,  when  Secretary  of  State  of 
the  United  States,  and  in  the  presence  of  the  official  delegates  of  the 
American  Republics  accredited  to  the  Third  Pan-American  Conference 
held  at  Rio  de  Janeiro  on  July  31,  I906: 

We  wish  for  no  victories  but  those  of  peace;  for  no  territory 
except  our  own;  for  no  sovereignty  except  the  sovereignty  over  our- 


90  APPENDIX 

selves.  We  deem  the  independence  and  equal  rights  of  the  smallest 
and  weakest  member  of  the  family  of  nations  entitled  to  as  much 
respect  as  those  of  the  greatest  empire,  and  we  deem  the  observance  of 
that  respect  the  chief  guaranty  of  the  weak  against  the  oppression  of 
the  strong.  We  neither  claim  nor  desire  any  rights,  or  privileges, 
or  powers  that  we  do  not  freely  concede  to  every  American  Republic. 
We  wish  to  increase  our  prosperity,  to  expand  our  trade,  to  grow  in 
wealth,  in  wisdom,  and  in  spirit,  but  our  conception  of  the  true  way 
to  accomplish  this  is  not  to  pull  down  others  and  profit  by  their 
ruin,  but  to  help  all  friends  to  a  common  prosperity  and  a  common 
growth,  that  we  may  all  become  greater  and  stronger  together. 

It  would  seem  that  the  measured  judgments  of  Lord  Stowell  and  of 
Chief  Justice  Marshall,  not  to  speak  of  Mr.  Root's  opinion,  given  as 
Secretary  of  State,  are  sufficient  to  establish  a  principle  of  international 
law,  and  that  it  is  unnecessary  to  cite  other  authorities,  if  the  ones  already 
quoted  fail  to  produce  conviction.  In  order  to  show,  however,  that 
independence  and  equality  are  the  law  of  the  American  Continent,  the 
authority  of  the  two  great  Latin-American  publicists  may  be  again 
invoked. 

Thus,  Bello  says: 

From  the  independence  and  the  sovereignty  of  nations  it  follows 
that  no  one  nation  is  permitted  to  dictate  to  any  other  nation  the 
form  of  government,  of  religion,  or  of  administration  that  it  must 
adopt,  or  to  hold  it  accountable  for  the  relations  between  its  citizens 
or  those  between  the  government  and  its  subjects.  (Bello,  Prin- 
cipios  de  Derecho  de  Jentes,  part  1,  chap.  1,  VII.) 

All  men  being  equal,  the  groups  of  men  composing  universal 
society  are  equal.  The  weakest  republic  enjoys  the  same  rights  and 
is  subject  to  the  same  duties  as  the  mightiest  empire.  (Bello, 
Principios  de  Derecho  de  Jentes,  part  1,  chap.   1,  11.) 

And  to  the  same  effect,  but  more  at  length,  Calvo  says: 

States  possess,  by  virtue  of  the  law  of  their  organization  and 
of  their  sovereignty,  their  own  exclusive  and  particular  sphere  of 
action.  In  this  respect,  they  depend  upon  no  one  and  are  bound  to 
provide  for  the  maintenance  of  those  rights  and  for  the  observance 
of  those  duties  alone  which  are  the  fundamental  and  necessary  basis 
of  every  free  society.  Absolute  sovereignty  necessarily  implies  com- 
plete  independence.      Hence   States,  in   so   far   as   they   are  moral 


APPENDIX  91 

persons,  have  a  fundamental  right:  the  right  of  freely  carrying  out 
their  destinies;  and  a  duty  that  is  no  less  imperative:  the  duty 
of  recognizing  and  of  respecting  the  sovereign  rights  and  the  abso- 
lute independence  of  other  States.  (Calvo,  Le  Droit  International 
Theorique  et  Pratique,  5th  ed.,  Vol.  I,  §  107.) 

The  equality  of  sovereign  States  is  a  generally  recognized  prin- 
ciple of  public  law.  It  has  the  twofold  consequence  of  gi%'ing  all 
States  the  same  rights  and  of  imposing  upon  them  the  same  mutual 
duties.  The  relative  size  of  their  territories  cannot  justify,  in  this 
regard,  the  slightest  difference  or  the  slightest  distinction  between 
nations  considered  as  moral  persons,  and,  from  the  point  of  view  of 
international  law,  as  well  as  from  that  of  equity,  what  is  lawful  or 
unjust  for  one  State  is  likewise  lawful  or  unjust  for  all  others. 
"  Nothing  can  be  done  to  a  small  or  weak  nation,"  said  Mr.  Sumner 
in  the  United  States  Senate  on  March  23,  1871,  "  that  would  not  be 
done  to  a  large  or  powerful  nation,  or  that  we  would  not  allow  to  be 
done  to  ourselves."  (Calvo,  Le  Droit  International  Theorique  et 
Pratique,  5th  ed.,  Vol.  I,  §  210.) 

IV.  Every  nation  has  the  right  to  territory  within  defined  boundaries 
and  to  exercise  exclusive  jurisdiction  over  its  territory,  and  all  persons 
whether  native  or  foreign  found  therein. 

This  right  is  to  be  understood  in  the  sense  in  which  it  was  stated  by 
Chief  Justice  Marshall  in  the  following  passage  of  his  judgment  in  the 
case  of  the  schooner  Exchange  (reported  in  7  Cranch's  Reports,  pp.  Il6, 
1S6-7),  decided  by  the  Supreme  Court  of  the  United  States  in  the 
year  1812: 

The  jurisdiction  of  the  nation,  within  its  own  territory,  is  neces- 
sarily exclusive  and  absolute;  it  is  susceptible  of  no  limitation,  not 
imposed  by  itself.  Any  restriction  upon  it,  deriving  validity  from  an 
external  source,  would  imply  a  diminution  of  its  sovereignty,  to  the 
extent  of  the  restriction,  and  an  investment  of  that  sovereignty, 
to  the  same  extent,  in  that  power  which  could  impose  such 
restriction.  All  exceptions,  therefore,  to  the  full  and  complete 
power  of  a  nation,  within  its  own  territories,  must  be  traced  up  to 
the  consent  of  tlie  nation  itself.  They  can  flow  from  no  other  legiti- 
mate source. 

This  consent  may  be  cither  express  or  implied.  In  the  latter 
case,  it  is  less  determinate,  exposed  more  to  the  uncertainties  of  con- 
struction;  but,  if  understood,  not  less  obligatory.     The  world  being 


92  APPENDIX 

composed  of  distinct  sovereignties,  possessing  equal  rights  and  equal 
independence,  whose  mutual  benefit  is  promoted  by  intercourse  with 
each  other,  and  by  an  interchange  of  those  good  offices  which  hu- 
manity dictates  and  its  wants  require,  all  sovereignties  have  con- 
sented to  a  relaxation,  in  practice,  in  cases  under  certain  peculiar 
circumstances,  of  that  absolute  and  complete  jurisdiction  within 
their  respective  territories  which  sovereignty  confers.  This  consent 
may,  in  some  instances,  be  tested  by  common  usage,  and  by  common 
opinion,  growing  out  of  that  usage.  A  nation  would  justly  be  con- 
sidered as  violating  its  faith,  although  that  faith  might  not  be 
expressly  plighted,  which  should  suddenly  and  without  previous 
notice,  exercise  its  territorial  powers  in  a  manner  not  consonant  to 
the  usages  and  received  obligations  of  the  ci\ilized  world.  *  *  * 
This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse,  and 
an  interchange  of  good  offices  with  each  other,  have  given  rise  to  a 
class  of  cases  in  which  every  sovereign  is  imderstood  to  waive  the 
exercise  of  a  part  of  that  complete  exclusive  territorial  jurisdiction, 
which  has  been  stated  to  be  the  attribute  of  every  nation. 

In  view  of  the  fullness  of  Chief  Justice  Marshall's  exposition  of  this 
right  and  its  consequences,  and  in  view  also  of  the  acceptance  of  The 
Exchange  as  an  authority  in  every  civilized  country,  both  as  to  the  right 
and  its  limitation,  it  does  not  seem  necessary  to  quote  statements  of  Latin- 
American  publicists,  in  order  to  sustain  what  may  be  called  the  obvious, 
and  which  is  deeply  imbedded  in  the  legislation  of  the  American  Republics. 

In  lieu  of  many  illustrations  that  might  be  drawn  from  the  civil 
codes  of  the  Latin- American  States,  one  will  suffice,  namely.  Article  14 
of  the  civil  code  of  Chile,  which  declares  that, 

the  law  is  binding  upon  all  the  inhabitants  of  the  Republic,  including 
foreigners. 

V.  Every  nation  entitled  to  a  right  by  the  law  of  nations  is  entitled 
to  have  that  right  respected  and  protected  by  all  other  nations,  for  right 
and  duty  are  correlative,  and  the  right  of  one  is  the  duty  of  all  to  observe. 

This  right  is  to  be  understood  in  the  sense  in  which  it  was  stated  in 
the  following  passage  from  the  judgment  of  Chief  Justice  Waite  in  the 
case  of  United  States  vs.  Arjona  (reported  in  120  United  States  Reports, 
pp.  479,  487),  decided  by  the  Supreme  Court  of  the  United  States  in 
1886,  holding  that  as  each  nation  had  by  international  law  the  exclusive 
right  to  fix  its  standard  of  money,  it  was  the  duty  of  the  United  States  as 


APPENDIX  93 

a  member  of  the  society  of  nations  to  protect  the  money  of  a  foreign 
country^  in  this  case  Colombia,  from  forgery: 

But  if  the  United  States  can  require  this  of  another,  that  other 
may  require  it  of  them,  because  international  obligations  are  of 
necessity  reciprocal  in  their  nature.  The  right,  if  it  exists  at  all, 
is  given  by  the  law  of  nations,  and  what  is  law  for  one  is,  under  the 
same  circumstances,  law  for  the  other.  A  right  secured  by  the  law 
of  nations  to  a  nation,  or  its  people,  is  one  the  United  States  as  the 
representatives  of  this  nation  are  bound  to  protect. 

VI.  International  law  is  at  one  and  the  same  time  both  national  and 
international:  national  in  the  sense  that  it  is  the  law  of  the  land  and 
applicable  as  such  to  the  decision  of  all  questions  inv^olving  its  principles ; 
international  in  the  sense  that  it  is  the  law  of  the  society  of  nations  and 
applicable  as  such  to  all  questions  between  and  among  the  members  of 
the  society  of  nations  involving  its  principles. 

International  law,  then  called  the  law  of  nations,  was  declared  by 
judges  and  commentators  before  the  Declaration  of  Independence  of  the 
United  States  to  form  an  integral  part  of  the  common  law  of  England, 
and  by  judges  and  commentators  of  the  United  States  as  adopted  at  one 
and  the  same  time  with  tlie  adoption  of  the  common  law  of  which  it 
formed  an  integral  part.  Thus,  in  the  case  of  Buvot  vs.  Barbuit  (reported 
in  Cases  Tempore  Talbot,  p.  281),  decided  by  Lord  Chancellor  Talbot  in 
1733,  that  distinguished  judge  and  upright  man  is  reported  by  Lord 
Mansfield,  who  was  then  the  ornament  of  the  bar  and  was  counsel  in 
the  case,  to  have  said: 

That  the  law  of  nations,  in  its  full  extent,  was  part  of  the  law  of 
England.  That  the  act  of  Parliament  was  declaratory,  and  oc- 
casioned by  a  particular  incident.  That  the  law  of  nations  was  to 
be  collected  from  the  practice  of  different  nations,  and  the  authority 
of  writers. 

In  the  case  of  Triquet  I's.  Bath  (reported  in  3  Burrow,  p.  1478), 
decided  by  the  Court  of  King's  Bench  in  1764,  Lord  Chief  Justice  Mans- 
field held,  quoting  the  judgment  of  Lord  Talbot  in  Buvot  vs.  Barbuit,  that 
the  law  of  nations  was  part  of  the  law  of  England ;  and  three  years  later, 
in  the  leading  case  of  Ileathfield  vs.  Chilton  (reported  in  4  Burrow,  p. 
2015),  Lord  Chief  Justice  Mansfield  reiterated  his  opinion,  stating  that, 

the  privileges  of  public  ministers  and  their  retinue  depend  upon  the 
law  of  nations;  which  is  part  of  the  common  law  of  England.     And 


94  APPENDIX 

the  act  of  Parliament  of  7  Ann.  c.  12  did  not  intend  to  alter,  nor 
can  alter  the  law  of  nations. 

I 
The  distinguished  commentator,  Sir  William  Blackstone,  who  had  been 

counsel  in  both  these  cases  tried  before  Lord  Mansfield,  wrote  in  the 

first  edition  of  the  fourth  volume  of  his  Commentaries  upon  the  Laws  of 

England,  published  in  1769;,  that: 

The  law  of  nations  (wherever  any  question  arises  which  is 
properly  the  object  of  its  jurisdiction)  is  here  adopted  in  its  full 
extent  by  the  common  law,  and  is  held  to  be  a  part  of  the  law  of  the 
land.  And  those  acts  of  Parliament,  which  have  from  time  to 
time  been  made  to  enforce  this  universal  law,  or  to  facilitate  the 
execution  of  its  decisions,  are  not  to  be  considered  as  introductive  of 
any  new  rule,  but  merely  as  declaratory  of  the  old  fundamental  con- 
stitutions of  the  Kingdom;  without  which  it  must  cease  to  be  a  part 
of  the  civilized  world. 

In  accordance  with  the  views  of  English  judges  interpreting  and 
apj)lying  the  common  law  and  in  reliance  upon  the  express  language  of 
the  illustrious  English  commentator  from  whom  they  had  learned  their 
law,  the  Revolutionary  statesmen  of  North  America  understood  and 
stated  that  international  law  was  a  part  of  the  law  of  the  United  States. 
Thus,  Thomas  Jefferson,  Secretary  of  State  under  Washington's  Admin- 
istration, referred  in  the  year  1793  to  "  the  laws  of  the  land,  of  which  the 
law  of  nations  makes  an  integral  part."  (American  State  Papers,  Foreign 
Relations,  Vol.  1,  p.  150.)  His  great  opponent,  Alexander  Hamilton, 
differing  in  most  respects  from  Thomas  Jefferson,  nevertheless  con- 
curred in  the  view  that  international  law  was  a  part  of  the  law  of  the 
land,  and  explained  it  more  elaborately  than  Mr.  Jefferson  in  the  follow- 
ing passage  quoted  from  the  essays  which  Hamilton,  under  the  pseudonym 
of  Camillus,  wrote  for  the  Press  in  1795  in  defense  of  the  Jay  Treaty: 

A  question  may  be  raised — Does  this  customary  law  of  nations, 
as  established  in  Europe,  bind  the  United  States?  An  affirmative 
answer  to  this  is  warranted  by  conclusive  reasons. 

1.  The  United  States,  when  a  member  of  the  British  Empire, 
were,  in  this  capacity,  a  party  to  that  law,  and  not  having  dissented 
from  it,  when  they  became  independent,  they  are  to  be  considered 
as  having  continued  a  party  to  it. 

2.  The  common  laAv  of  England,  which  was  and  is  in  force  in 


APPENDIX  95 

each  of  these  States,  adopts  the  law  of  nations,  the  positive  equally 
with  the  natural,  as  a  part  of  itself. 

3.  Ever  since  we  have  been  an  independent  nation,  we  have  ap- 
pealed to  and  acted  upon  the  modern  law  of  nations,  as  understood 
in  Europe — various  resolutions  of  Congress  during  our  Revolution, 
the  correspondence  of  executive  offices,  the  decisions  of  our  courts 
of  admiralty,  all  recognize  this  standard. 

4.  Executive  and  legislative  acts,  and  the  proceedings  of  our 
courts,  under  the  present  government,  speak  a  similar  language. 
The  President's  proclamation  of  neutrality  refers  expressly  to  the 
modern  law  of  nations,  which  must  necessarily  be  understood  as  that 
prevailing  in  Europe,  and  acceded  to  by  this  country;  and  the  general 
voice  of  our  nation,  together  with  the  very  arguments  used  against 
the  treaty,  accord  in  the  same  point.  It  is  undubitable,  that  the  cus- 
tomary law  of  European  nations  is  as  a  part  of  the  common  law,  and, 
by  adoption,  that  of  the  United  States.  (Lodge's  "Works  of  Alex- 
ander Hamilton,"  1885,  Vol.  V,  pp.  89-90.) 

A  recent  decision  of  the  Supreme  Court  of  the  United  States  defines 
the  relation  of  international  law  to  the  law  of  the  land  as  it  was  stated 
by  Sir  William  Blackstone  in  his  Commentaries  published  before  the 
American  Revolution.  Thus,  in  the  case  of  The  Paquete  Habana  (re- 
ported in  175  United  States  Reports,  pp.  677,  700),  decided  in  1899, 
Mr.  Justice  Gray,  delivering  the  opinion  of  the  Court,  said: 

International  law  is  part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction,  as 
often  as  questions  of  right  depending  upon  it  are  duly  presented  for 
their  determination.  For  this  purpose,  where  there  is  no  treaty,  and 
no  controlling  executive  or  legislative  act  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  nations ;  and,  as 
evidence  of  these,  to  the  works  of  jurists  and  commentators,  who, 
by  years  of  labor,  research,  and  experience,  have  made  themselves 
peculiarly  well  acquainted  with  the  subjects  of  which  they  treat. 
Such  works  are  resorted  to  by  judicial  tribunals,  not  for  the  specula- 
tions of  their  authors  concerning  what  the  law  ought  to  be  but  for 
trustworthy  evidence  of  what  the  law  really  is. 

It  may  be  said  in  suinniing  up  the  relation  of  international  law  to  the 
common  law  of  England  and  to  the  municipal  law  of  the  United  States, 
that  international  law  is  part  of  the  English  common  law;  that  as  such 


96  APPENDIX 

it  passed  with  the  English  colonies  to  America;  that  when^  in  conse- 
quence of  successful  rebellion,  they  were  admitted  to  the  society  of 
nations,  the  new  Republic  recognized  international  law  as  completely  as 
international  law  recognized  the  new  Republic.  Municipal  law  it  was  in 
England ;  municipal  law  it  remained  and  is  in  the  United  States.  Without 
expressing  an  opinion  upon  the  vexed  question  whether  it  is  law  in  the 
abstract,  the  courts.  State  and  Federal,  take  judicial  cognizance  of 
its  existence,  and  in  appropriate  cases  enforce  it,  so  that  for  the 
American  student  or  practitioner  international  is  domestic  or  munici- 
pal law. 

The  constitutions  of  certain  Latin-American  States  expressly  lay 
down  the  principle  of  Anglo-American  law  that  international  law  is  part 
of  the  law  of  the  land.  Thus,  Article  106  of  the  constitution  of  the  Do- 
minican Republic  and  Article  125  of  the  constitution  of  Venezuela,  whichi 
admits  the  principle  with  certain  limitations.  The  constitution  of 
Colombia  of  1 863  expressly  declared  that  "  The  law  of  nations  forms  part 
of  the  national  legislation,"  and  an  eminent  American  publicist  specially 
versed  in  such  matters  states  that  "  the  authorities  of  the  country  are 
imderstood,  in  their  treatment  of  neutrality  and  other  questions,  to  have 
acknowledged  the  continuing  force  of  the  principle."  In  other  constitu- 
tions of  the  American  Republics  the  principle  is  not  stated  in  express 
terms.  It  is,  however,  recognized  implicitly  or  for  specific  cases;  for 
example.  Articles  31,  100,  and  101  of  the  constitution  of  Argentina; 
Articles  59,  60,  and  61  of  the  constitution  of  Brazil;  Article  73  of 
the  constitution  of  Chile;  Article  107  of  the  constitution  of  Honduras; 
Article  96  of  the  constitution  of  Uruguay,  etc.,  etc. 

The  laws  of  Latin-American  countries — notably  those  relating  to 
judicial  procedure  or  to  the  organization  of  judicial  authority — recog- 
nize, expressly  or  implicitly,  the  principle  in  question.  In  all  the 
American  countries  the  rules  of  international  law  have  been  treated 
as  in  force  in  their  proclamations  of  neutrality  in  the  great  European 
war. 

In  future  it  must  be  expressly  admitted  as  the  basis  of  the  public  law 
of  the  New  World  that  international  law  is  part  of  the  national  legislation 
of  every  country.  This  is  not  only  a  principle  of  justice  but  one  that  is 
necessary  to  facilitate  and  to  strengthen  the  friendly  relations  of  all 
States. 

The  following  impressive  language  of  an  eminent  citizen  of  the 
American  continent,  Daniel  Webster,  to  be  found  in  an  official  instruction 
written  when  he  was  Secretary  of  State  of  the  United  States  of  America, 


APPENDIX  97 

may  be  quoted  as  a  statement  in  sxunmary  form  of  the  rights  and  duties 
of  nations,  especially  of  the  American  Republics: 

Every  nation,  on  being  received,  at  her  own  request,  into  the 
circle  of  civilized  governments,  must  understand  that  she  not  only 
attains  rights  of  sovereignty  and  the  dignity  of  national  character, 
but  that  she  binds  herself  to  the  strict  and  faithful  observance  of  all 
those  principles,  laws,  and  usages  which  have  obtained  currency 
among  civilized  states,  and  which  have  for  their  object  the  miti- 
gation of  the  miseries  of  war. 


INDEX 


Abbott,  John  S.  C,  anecdote  of  William 
Ladd,  14 

Advocate  of  Peace,  v 

As  a  great  and  worthy  organ,  6 
Its  circulation  and  influence,  7 
Founded,  13 

^sop,  69 

Alexander  I,  idea  of  a  universal  Holy 
Alliance,  29 

American    Peace    Society,    three    docu- 
ments relating  to,  v-vi 
The    future    of,    by    James    Brown 

Scott,  1  ff. 
Has  great  traditions,  3 
\\'ork  should  be  constructive,  3 
Should  live  up  to  traditions,  5 
Restrict  self  to  definite  program,  5 
Encourage  and  aid  other  societies,  6 
Carry    doctrines    to    logical    conclu- 

clusion,  6 
Its    unique    position     in     the     peace 

movement,  6 
Offers  $1,000  prize,  8 
Volume  of  six  essays,  8 
Founded  by  William  Ladd,  12 

Ajnerican  Advocate  of  Peace,  13 

American  Conferences,  Second,  54 
Third,  54 
Fourth,  54. 

American     Institute     of     International 
Law,  60,  85 

American  Journal  of  International  Law, 
quoted,  77 

American  Republics,  conferences  of,  54 

American   Revolution,  70 

"Antelope,  llie,"  60,  89 

Appendix,  85 

Appleton,  Jesse,   President,   10 

Arbiter,  the,  not  a  free  agent,  63 

Arbitration,  4 

In  disputes  of  a  non-justiciable  na- 
ture, etc.,  C3 
Has  for  its  object,  63 

Arms,  substitute  for,  4 

Army  and  navy,  increase  of,  4 

Articles  of  Confederation,  58,  71 

B 

Balch,  Thomas  Willing,   17 
Baldwin,  Mr.  Justice,  66 
BeUo,  Messrs.,  and  Calvo,  88  flF. 


Bentham,  Jeremy,  39,  40 
Blackstone,  Sir  William,  94 
Bourgeois,  M.  L^on,  64 
Brewster,  Sir  David,  3 
Bryan,  William  Je'nnings,  61,  62 
Burritt,  Elihu,  1 

European  Peace  Congresses,  2,  49 

Disciple  of  Ladd,  3 

Secretary  American  Peace  Society,  3 

Tribute  to  William  Ladd,  8-9 
Buvot  vs.  Barbuit,  61,  93 


Call,  Arthur  Deerin,  Letter  to  James 

Brown  Scott,  v 
Letter  to,  from  Jameis  Brown  Scott, 

vi 
Calumet,  the,  12 
Carnegie  Endowment  for  International 

Peace,  v 
Proposal  to  Executive  Committee  of,  2 
Castlereagh,  Viscount,  35 
Chinese  Exclusion  Case,  60,  87 
Choice  of  Judges,  65 
Cineas,  The  New,  16 

Relation  to  Great  Design,  23 
Clough,  A.  H.,  18 
Cobden,   Richard,  3 
Coercion  of  law  and  coercion  of  arma, 

76 
Commissions  of  inquiry,  4 
Committee  of  the  States,  a,  58 
Compromis  Clau.se,  the,  3 
Compromise,  63 

Congress  of  Nations,  2,  8  ff.,  13 
Congress  of  Vienna,  19 
Congress  of  Westphalia,  16,  19 
Constitution,  Fathers  of  the,  70,  79 
Constitutional  Convention,   1787,  71,  79 
C/Onstructive  policy,  3 
Convention    for    the    Pacific    Settlement 

of  International  Disputes,  56,  57 
Court  of  Nations,  2,  8  ff. 
Crimean  War,  3 
Cruce,  Knicric,  17 

His  desire,  18 
Czar  of  Russia,  42 


Darl>y,  W.   Evans,  ^V2 
Declaration  of  Indei>eiidcnce,  70 


90 


100 


INDEX 


Declaration  of  the   Rights  and  Duties 
of  Nations,  60,  85,  86 
Official  commentary  upon,  87 
Disputes,  non-justiciable,  62 
Dodge,  David  Law,  founder  of  peace 

movement,  10  fF. 
Dutch  Minister  of  Foreign  Aflfairs,  56, 
57 

E 

Economics  Royales,  Sully,  21,  22,  24 

Education,  importance  of,  80 

Elizabeth,  Quee!n,  27 

Elliot's  Debates,  quoted,  75-76 

Ellsworth,  Oliver,  opposed  to  force,  76 

Empire,  wars  of  the,  51 

"  Exchange,  The,"  60,  91 

F 
Fair  dealing,  63 

Farrand's  Records  of  the  Federal  Con- 
vention, quoted,  72,  73,  74,  76 
Federalist,  the,  quoted,  73,  75 
Fleury,  Cardinal,  49 
Force,  3,  4,  51,  71  ff. 
Franklin,  Benjamin,  10 
Friendly  composition,  4,  63 
French  Revolution,  51 


Good  offices,  3 

Mediation   and   friendly   composition, 
62 
Grood  faith  of  nations,  77 
Gray,  Mr.  Justice,  95 
Grotius,  Hugo,  De  Jure  Belli  ac  Pads, 
19,  51 

H 

Hague  Conference,  a  stated  meeting  of, 
53 
Law-recommending   if   not   law-mak- 
ing body,  53 
Conventions   and  Declarations  of,  53 
Call,    procedure,    internationalization 

of,  53 
Committee    on    ratification    and    ob- 

sefrvance,  55,  82 
Call  of  a  Third,  52 
The  First,  52,  56,  57,  61-63,  84 
The   Second,  Mr.   Root's  instructions 
to,  52,  53,  55,  56,  57,  65,  84 
Hague,  The,  Foreign  Office  at,  56 
Hamilton,  Alexander,  94  ff. 

Agreed    with    Madison    as    to    force, 
74  ff. 
Harbinger  of  Peace,  12 
Heathfield  vs.  Chilton,  61 
Hemmenway,  John,  Memoir  of  William 

Ladd,  9 
Henry  IV,  Design  of,  19,  26  ff. 
Holtzendorff,  von,  28 


Holy  Alliance,  the,  51 
House  of  Austria,  23 
Hugo,  Victor,  3 

Hunt's  edition,  Madison's  Journal, 
quoted,  72,  73,  74,  76 

I 

International  Bureau,  57 

International  Bureau  of  American  Re- 
publics, 54,  77 

International  Commission  of  Inquiry, 
61 

International  Council  of  Conciliation,  61 

International  Court,  64,  66  ff,,  6Q 

International  Justice,  70 


Jay,      William,     President      American 
Peace  Society,  1 

War  and  Peace,  1 

The  compromis  clause,  3 
Jay  Treaty,  1794,  10,  64,  94 
James  I,  King,  27 
Jefferson,  Thomas,  94 
Justiciable  disputes,  66 
Judicial  decision,  3 
Judicial  Union  of  the  Nations,  66 

K 

Kant,  Immanuel,  24,  40  ff. 

Kentucky  vs.  Dennison,  Supreme  Court 

not  execute  by  force  its  judgments 

against  States,  67 


Lacroix,  Emeric,  23 
Ladd,   William,    founder   of   American 
Peace  Society,  1,  8  ff. 
His  "  Essay "   greatest  literary  con- 
tribution to  cause  of  international 
peace,  1 
Proposal     to     Executive     Committee, 
Carnegie   Endowment   for   Interna- 
tional Peace,  2 
A  Congress  of  Nations,  2 
A  Court  of  Nations,  2 
Had  no  illusions,  2,  49 
Tribute  of  Elihu  Burritt,  8 
Foresaw     and     outlined     labors     of 

Hague  Conferences,  9 
His  life,  9 

Essay  on  a  Congress  of  Nations,  13 
Relation  of  his  plan  to  those  before, 
43  ff. 
Las  Cases,  Count  de,  24 
Le  Cynee  d'Estat,  by  Emeric  Lacroix, 

23 
Leibnitz,  34 
"Louis,  The,"  60,  88 


INDEX 


101 


M 


Madison,     James,     on     force     between 

States,  72  ff. 
Madison's  Journal  of  Debates,  quoted, 

72flF. 
Mansfield,  Lord,  94 
Marshall,   Mr.  Chief  Justice,  8,  66,  89, 

90,  91  ff. 
Mason,  George,  opposed  to  force',  75 
Massachusetts  vs.  Rhode  Island,  66 
Mead,  Edwin  D.,  two  tractates,  11 

Great  Design  of  Henry  IV,  21 
Mediation,  3 

N 

Napoleon,  24 

New  Jersey  plan,  72 

Ne^v-  Jersey  vs.  New  York,  66 

Netherlands,  the,  56 

Minister  of  Foreign  Affairs  of,  66 
New  York  Peace  Society,  founded,  11 
Non- justiciable  disputes,  62 
Nys,  Professor  Ernest,  19 


Organization   of    International   Justice, 
51 


Panama,  Congress  of,   19 

Pan-American  Conference,  Third,  89 

Paquete  Habana,  The,  61,  95 

Patterson,  William,  72 

Peabotlv,    Andrew    Preston,    tribute    to 
William  Ladd,  15 

Peace  Congress,  European,  2 

Peace      Congresses,      Brussels,      Paris, 
Frankfort,  London,  9 

Peace    movement,    head    and    front    of 
scientific  and  practicable,  2 

Peace  Palace  at  The  Hague,  56 

Peace    projects,    17th     and    18th    cen- 
turies, 16 

Peaceable  settlement,  4 

Peace  societies,  12 

Peace  Workers,  Conference  of,  1 

Penn,  William,  24 
Essnif,  25,  69 
His  plan,  70,  79 

Permanent    Administrative    Council,    57 

J'crniaru-nt  Court  of  Ari)itration,  57,  65 

I'erefixe,  M.  de,  26 

i'fister,  Charles,  22,  23,  24 

Phillips'   Confederation  of  Europe,  25, 
28,  34,  35,  52 

Physical  force,  67 

Plaintiff    State,    right    to    proceed    ex 
parte,  66 

Plutarch,   17 


Public    opinion,    sanction    of    Supreme 
Court,  67 
Creation  of  an  enlightened,  80 
Pythagoras,  80 
Pyrrhus,  17 


R 


Ralston,  Jackson  H.,  v 

Letter  to,  from  James  Brown  Scott,  1 
Randolph,  Edmund,  72 
Rastatt,  Treaty  of,  40 
Regina  vs.  Dudley,  60,  87 
Rhode  Island  vs.  Massachusetts,  66 
Rights  and  Duties  of  Nations,  Declara- 
tion of,  60 
Rio  de  Janeiro,  54 

Root,     Elihu,     instructions    to    Second 
Hague  Conference,  53 
Hague  Conference,  53,  55 
Proposal,  59 

At  laying  of  corner-stone  of  Interna- 
tional Bureau  of  American  llepulj- 
lics,  77 
Quoted,  79,  80,  81,  82,  83,  89,  90 
Roosevelt,  President,  on  public  and  pri- 
vate morality,  78 
Rousseau,  J.  J.,' 33,  34,  35,  36 

Social  Contract,  37  ff, 
Russia,  50 


Saint-Pierre,  Abb^  de,  24 

Perpetual  peace,  28  ff. 
Sanctions,  greatest  of,  80 
Scott,    James    Brown,    letter    received 
from  Arthur  D.  Call,  v 
Letter  to  Arthur  D.  Call,  vi 
Future   of    the   American   Peace   So- 
ciety, 1 
William  Ladd,  founder  of  the  Amer- 
ican Peace  Society,  etc.,  8 
Tlie  organization  of  international  jus- 
tice, 51 
Scott's  Texts  of  the  Peace  Conferences 

at  The  Ilaquf,  quoted,  83 
Scott,  Sir  Wiliiam    (Lord  Stowell),  88 
Senate    Document    No.   444,   60th   Con- 
gress, quoted,  82 
Sheriff,  international,  68 
Solemn  Review  of  the  Custom  of  War, 

A,  12 
Sovereignty,  59 

Not  involved  in  formation  of  judicial 
union,  68 
State,  Department  of,  54 
Secretary  of,  56 
DrfcJidnnt,  70,  72 
I'laintiff,  66 
Substitute  for  arms,  4 


102 


INDEX 


Sully,  19flF. 

Sumner,    Charles,    tribute    to    William 

Ladd,  14 
Supreme  Ck)urt  of  the   United  States, 

66,  68 

T 

"  The  Antelope,"  60,  89 
"The  Exchange,"  60,  91 
"  The  Louis,"  60,  88 
Thirty  Years'  War,  51 
Treaties  for  short  terms,  78 
Treaties  of  1911,  78 
Triquet  vs.  Bath,  61,  93 
Troppau  Protocal,  35 

U 

United  States  vs.  Arizona,  61,  92 
United  States  vs.  Texas,  71 
United  States,  defense  of,  4 
Not  above  justice,  71 


Unive?rsal  Postal  Union  of  1908,  66 
Prototype  of  judicial  union,  67 
Self-governing   dominions  parties   to, 
68 

Utrecht,  Ck)ngress  of,  41 
Treaty  of,  27 


Virginia  delegation,  72 
Plan,  the,  72 


W 

War,  the  Great,  of  1914,  52 
Washington,  George",  10 

Quoted,  79 
Webster,  Daniel,  8,  96 
Westphalia,  Treaty  of,  27 
Wheaton,  Henry,  28,  37 
Worcester,  Rev.  Noah,  12 


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